Vincent v R [2015] NZCA 201 (27 May 2015)

Last Updated: 4 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA870/2013 [2015] NZCA 201
BETWEEN	DEAN MICHAEL VINCENT Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2015
Court:	Randerson, Miller and Cooper JJ
Counsel:	R M Lithgow QC and N Levy for Appellant J C Pike QC for Respondent
Judgment:	27 May 2015 at 11:30 am

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed.

100. The sentence of six years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted, cumulative upon all existing sentences.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction The circumstances of the offending Mr Vincent’s statement to the police Mr Vincent’s evidence at trial Mr Pratt’s evidence at trial The ruling on self-defence The summing-up Did the Judge err in taking away self-defence from the jury? Submissions Self-defence — discussion Taking away self-defence from the jury The jury questions Jury questions — discussion First and second questions The third question The fourth question The appeal against sentence The Judge’s approach Counsel’s submissions on sentence Sentence appeal — discussion Result

[1] [3] [7] [11] [14] [15] [17] [20] [20] [24] [30] [35] [41] [41] [45] [47] [53] [53] [58] [63] [66]

Introduction

[1] The appellant Mr Vincent was found guilty after a jury trial in the District Court on one count under s 188(1) of the Crimes Act 1961 of wounding with intent to cause grievous bodily harm.^[1] Judge Davidson presided over the trial and sentenced the appellant on 28 November 2013 to six years imprisonment, cumulative upon other sentences of imprisonment then being served.
[2] Mr Vincent now appeals against both conviction and sentence. He advances the conviction appeal on two grounds:

• (a) The trial Judge wrongly took away self-defence from the jury.
• (b) The Judge erred in answering jury questions.

The circumstances of the offending

[3] The incident giving rise to the charge occurred on 28 August 2012 in the High Medium Unit at Rimutaka Prison where both Mr Vincent and the victim Mr Stoneham were fellow inmates. It is not in dispute that, on that day, Mr Vincent stabbed Mr Stoneham four times in the back of his neck using a makeshift knife Mr Vincent had fashioned for the purpose. Four days before this occurred, there had been a confrontation between the two men in an exercise yard at the prison. Mr Vincent believed that Mr Stoneham was deliberately kicking a basketball at him. There was a scuffle between the two men and punches were thrown.
[4] Between 24 August and 28 August 2012, the two men were placed on separate management routines to avoid further confrontation. On 28 August 2012, both were interviewed by a senior Corrections officer and, after assurances were received, the men were returned to their earlier routine in which they were managed together.
[5] Later that day, Mr Stoneham was seated in the unit with another inmate. A Corrections officer was nearby. Mr Stoneham and the other inmate were playing Sudoku. Mr Vincent approached Mr Stoneham and had a brief conversation with him which Mr Vincent described as amiable. Shortly afterwards, Mr Vincent returned to his cell and obtained a weapon he had earlier manufactured. This was a sharpened metal blade some 80 mm in length attached to a toothbrush handle. He returned to the place where Mr Stoneham remained seated with his back to Mr Vincent. The weapon was concealed. Mr Vincent then stabbed Mr Stoneham four times in quick succession, the blade of the weapon ultimately bending when it came into contact with Mr Stoneham’s shirt collar.
[6] Mr Stoneham was taken to hospital. Fortunately, there were no serious consequences from the injuries he suffered. The wounds were sutured and Mr Stoneham was able to be returned to the prison the same day. There have been no permanent consequences from the injuries suffered.

Mr Vincent’s statement to the police

[7] After the attack on 28 August 2012 Mr Vincent immediately surrendered his weapon and apologised to Corrections officers. The next day, he was interviewed at length at the prison by Detective Sergeant Radovich. He readily admitted stabbing Mr Stoneham repeatedly in the neck after what Mr Vincent described as a period of prolonged provocation and antagonism from Mr Stoneham. Mr Vincent said he had come to the view that Mr Stoneham presented a risk of harm to his safety. It was his intention to cause Mr Stoneham some physical suffering and some immobility to prevent him further jeopardising his personal safety. He said:

Ah basically I was going to immobilise him ah for my own self preservation. Um, there was never any intention to destroy Shane Stoneham completely I ... specifically targeted some of the muscles in his neck, cause some trauma to the tissues in his neck muscles, just to ah prevent him from um pursuing his policy of antagonising and ah exploiting my vulnerabilities and ah exploiting my ah concerns I had for my own physical well being. ... I struck him, ah some stabbing blows to the neck, penetrating his neck ah three times, quite controlled manner, it wasn’t a frenzied attack, I was specifically targeting a certain area of his neck ...

[8] Mr Vincent went on to describe Mr Stoneham as a mentally ill sexual deviant who was serving a sentence of preventive detention. Mr Vincent found him to be an offensive character with whom he had nothing in common. Mr Vincent continued:

I can just say that Shane Stoneham was ah presenting to me a real and immediate threat to my well being, my trust in the prison officers ability to keep me safe had broken down. I took matters into my own hands and attacked Shane Stoneham, without putting too fine a point of it, it was an act of self defence ... I do not believe that it's an act that is not legally defensible or morally reprehensible, under the circumstances which I hope to describe in some detail.

[9] Mr Vincent then described a previous physical confrontation between himself and Mr Stoneham over the basketball. He had asked Mr Stoneham not to kick the basketball at him or another inmate, Mr Algenon Pratt, who he described as vulnerable due to a prior head injury. Mr Stoneham had denied deliberately kicking the basketball at Mr Vincent and a physical confrontation had developed. Mr Vincent said he received a broken finger in this incident and claimed to have been hit in the head by Mr Stoneham. He described the basketball as being really heavy; he was concerned for his safety. An earlier complaint he had made to a prison officer about this had not stopped Mr Stoneham from continuing to kick the basketball at him. Mr Vincent said he was at the end of his tether and had told a Corrections officer that he was going to use force against Mr Stoneham if he did not stop. He had warned Mr Stoneham he would use force to restrain him but Mr Stoneham’s response was vindictive and abusive.
[10] When asked about his discussion with the senior Corrections officer earlier on the day of the stabbing, he was concerned that the officer seemed to be defending Mr Stoneham and he believed Corrections staff were not doing anything to protect him from the risk he believed Mr Stoneham presented. He said it was after he had finished talking with the senior Corrections officer, that he decided he was going to stab Mr Stoneham. It was going to be “an ambush attack” and he stabbed him about five minutes after retrieving the knife from his cell.

Mr Vincent’s evidence at trial

[11] At trial Mr Vincent defended himself with a court appointed amicus curiae. Mr Vincent gave evidence in his own defence along similar lines to his police statement. He described his concerns about Mr Stoneham as having continued over a number of weeks; he was concerned about his own safety and that of Mr Pratt; he had been unsuccessful in his requests to Mr Stoneham to stop kicking the basketball at him; he had raised the matter with Corrections officers including complaining in a five page letter written after the physical confrontation on 24 August without any success; it was because of his actions that the act of actually hurting him or someone else with the ball had not been “consummated”; and there was a deterrent factor because Mr Stoneham had not kicked a basketball at him since.
[12] Mr Vincent described his actions as a counter-attack. He said he had to take some care that the level of force used was not out of proportion with the intent and motivation of the person he was attacking. In his words:

The intent, the intent that was motivating Mr Stoneham, as far as I was concerned, was quite injurious, it’s quite harmful, and the, the response to that in my mind was to deter him and, and to immobilise him to a certain, certain extent. It may be difficult, I was thinking may be difficult to kick a, ah, kick a basketball round but he said he’s got, he’s been injured in the neck, and so – and the biological makeup of the neck area, the soft tissue area, the muscle issue, ah, the muscle, muscle tissue around that area. No vital organs in that area so, ah, no vital organs, so – all I wanted to do was just harm, harm him to the point that he experienced some immobility and that he, he would have to step back from his aggressive, energetically aggressive, behaviour. And, yeah, as far as I’m concerned, as far I was concerned, he, he presented a threat.

[13] Further:

I was not confident there was any other way of dealing with the threat. I wasn’t physically confident that I could – well, I could bash the guy, I could bash the guy enough to, to deter him. I mean – or, or, you know, immobilise him enough through, through giving him a bashing to actually make him stop and think, ah, yeah. Mmm. So I resorted to a weapon. I, I had to – I’ve seen, I’ve seen the guy out in the yard. He jumps around, leaping round. Very energetic. Quite, quite fit. He’s almost half, half my age. Taller than me, he’s heavier than me. Younger. More energy I think and, ah, yeah physically I wasn't confident that I could give him his due and that's why I made the weapon and I thought well this will hurt him enough to deter him, it will hurt him enough to deter him, it will hurt him enough to do – stop the whole thing, just stop the conflict and it will be done in such a measure that it reflects the level of harm that he was presenting to others – particularly to myself and to Mr Pratt and, ah, this was what was going through my mind and this is basically what I was preoccupied with in the days leading up to the stabbing incident. Um, however, the decision to stab Mr Stoneham was made soon after my meeting with Mr Perkins, PCO Perkins.

Mr Pratt’s evidence at trial

[14] Mr Pratt confirmed that he had received head injuries in a motor accident. His evidence was fairly vague about interactions with Mr Stoneham. He recalled there had been occasions when Mr Stoneham was kicking the basketball around the exercise yard. On occasions, he had been hit with the ball but he did not recall that having happened on 24 August. He did not express any particular concern about this and did not regard himself as under any threat from Mr Stoneham.

The ruling on self-defence

[15] At the conclusion of the evidence and final addresses, Judge Davidson ruled that self-defence could not be submitted to the jury. His reasons for reaching this conclusion are expressed in these paragraphs:^[2]

[2] I have not called upon Ms Feltham [prosecuting counsel] because I do not need to do so. During discussion with Mr Vincent I made my position as to my ruling very clear. There is nothing which he has been able to say which changes an abundantly plain view I have about the matter; that is, that self-defence simply cannot lie. To suggest, as Mr Vincent does, that at the time he stabbed Stoneham 4 times in the neck from behind that Stoneham posed some form of imminent threat is palpable nonsense.

[3] At best, the evidence shows that there was animosity between the 2. It may show that Stoneham embarked on some taunting behaviour of the accused, manifested by kicking a basketball towards him deliberately while in the exercise yard 4 days earlier. This led to a scuffle between the 2. The jury have seen aspects of this incident. Even viewing all of those circumstances as favourably as possible to the accused, it is simply implausible to suggest that this justified stabbing him 4 days later.

[16] The Judge then indicated that he intended to direct the jury that in the circumstances of the case, self-defence did not lie. He informed the parties of the terms of the direction he intended to give the jury on this point and on the relevance of provocation.

The summing-up

[17] Apart from the complaint about not leaving self-defence to the jury, there is no criticism of the Judge’s summing-up which was expressed in conventional terms. The Judge described a wound as a breaking of the skin like a cut or a laceration. As to the element of intent, the Judge directed the jury that the Crown had to prove beyond reasonable doubt that Mr Vincent intended to cause Mr Stoneham really serious harm. The Judge directed the jury on the issue of selfdefence and provocation in these terms:

[26] Now Mr Vincent's case is that he was justified in what he did out of self-preservation, self-defence and defence of another. As I will soon tell you, self-defence or defence of another cannot, and does not, arise here. However, you still need to decide whether the Crown has proved beyond reasonable doubt he intended really serious harm. At the critical time he inflicted the blows, did he intend really serious harm or was he so overcome by his crusade for personal safety, resentment of Shane Stoneham and the prison authorities that he gave no real thought at that critical point? Remember, it is for the Crown to prove he intended really serious harm, not for him to prove that he did not.

[27] You will need to concentrate [on] his state of mind at the crucial time when the blows were actually inflicted. What he said and did before and after are all relevant, but the crucial time is when he actually stabbed Shane Stoneham. Was his intention really serious harm?

[28] Now self-defence and defence of another. I direct you as a matter of law, this defence does not arise here. But out of fairness to Mr Vincent, let me explain why. Our law provides that everyone is justified in using in the defence of himself or another such force as in the circumstances as he believes them to be it is reasonable to use. The critical words are, “in the defence of himself or another”. On any view of what happened in the wing area, even as favourable as possible to Mr Vincent, he could not have been defending himself, or anyone else, when he stabbed Mr Stoneham. At that point in time Stoneham posed no threat to him or anyone at all. He was seated with his back to Mr Vincent. As well, harbouring some gripe or resentment about the exercise incident a few days earlier or concerns about the prison authorities keeping him safe quite plainly could never justify such a disproportionate and excessive response. So to sum up on this issue, I repeat: self defence or defence of another has no application here at all.

[29] Lastly, provocation is not a defence under our law at all. So if, for example, you thought Mr Vincent had been provoked somehow or other, that is irrelevant to your decision of whether the Crown have proved the charge beyond reasonable doubt.

[18] The Judge concluded by briefly summarising the case for the Crown and the defence. The prosecution submitted that proof of an intention by Mr Vincent to cause really serious harm lay in Mr Vincent’s police interview, his evidence in court and in the inference from the circumstances of the attack. Mr Vincent had targeted the neck area where serious injury could easily result. He had fashioned a knife, stabbing Mr Stoneham four times with the intention of immobilising him. It was effectively an ambush against a background of the contempt and distaste with which Mr Vincent held Mr Stoneham.
[19] The Judge described Mr Vincent’s case in these terms:

[44] Mr Vincent rightly told you about the onus and standard of proof. He submitted to you that there was doubt and that he should therefore have the benefit of it. He submitted to you that he did not stab with a bad intent but rather as a final resort to stop Mr Stoneham with his behaviour which he found injurious and distasteful.

[45] He submitted to you that the nature of the injuries that Mr Stoneham had received did not support a conclusion that he had acted with an intent of really serious harm. He noted that no vital organs in Mr Stoneham's neck area were affected. The injuries could not be described as life threatening. There was no need for any ongoing medical treatment. Fairly minimal medical intervention was required with a taping of the injuries, a neck brace and mild pain relief. He noted that Mr Stoneham recovered from these injuries fairly quickly.

[46] Mr Vincent's essential case, therefore, is that the Crown have failed to prove beyond reasonable doubt that at the critical time, at the time the wounds were actually inflicted, that he intended really serious harm.

Did the Judge err in taking away self-defence from the jury?

Submissions

[20] Mr Lithgow QC submitted on Mr Vincent’s behalf that there was no valid basis for the Judge to take away self-defence. Counsel submitted it is wellestablished that self-defence under s 48 of the Crimes Act involves three questions:

• (a) Did the defendant use force for the purpose of defending himself or herself or another?
• (b) What were the circumstances as the defendant believed them to be?
• (c) Was the force used reasonable in those circumstances?

[21] Counsel submitted that the second of these questions should generally be the first issue the jury is asked to determine since it provides the departure point for the other two questions. The Judge had erred in considering the third question first. Mr Vincent’s evidence was he believed Mr Stoneham did pose a threat to himself and others. He believed that further assaults on him or others by Mr Stoneham were inevitable and that other attempts at accessing help from prison authorities had been exhausted. It was his view of these matters that were to be considered, not those of the trial Judge. An available interpretation was that Mr Vincent had a genuine and desperate need to protect the little freedom in society available to him in the one hour per day he was permitted to leave his cell.
[22] Mr Lithgow submitted that self-defence could be available when the assault at issue could be regarded as pre-emptive in nature. Whether the force used was reasonable in the circumstances as Mr Vincent believed them to be depended upon the imminence and seriousness of the threat and the opportunity to seek protection without recourse to the use of force. All these matters were for the jury to determine as a matter of fact. Taking away self-defence was a rare and unusual step that should be approached with caution.
[23] In response, Mr Pike QC for the Crown accepted that self-defence could lie in respect of a pre-emptive strike but emphasised the Court had an important gatekeeping function. The Judge retained the ability to remove self-defence from the jury where there was no credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence. Here, there was no plausible narrative giving rise to the possibility of self-defence since Mr Vincent was under no imminent threat to his own safety or that of anyone else; stabbing Mr Stoneham in the neck was not a proportionate reaction to the circumstances as Mr Vincent believed them to be; and what Mr Vincent did could not amount to the use of reasonable force.

Self-defence — discussion

[24] Section 48 of the Crimes Act 1961 provides:

Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.

[25] It is well-established that a three-stage test should be applied to s 48:^[3][4]

• (a) What were the circumstances as the accused honestly believed them to be?
• (b) In those circumstances, was the accused acting in the defence of himself or another?
• (c) Was the force used reasonable in the circumstances as the accused believed them to be?

[26] It is uncontroversial that in approaching the question of what the circumstances were as the accused honestly believed them to be, it is the defendant’s actual beliefs that are critical. Necessarily, this is to be approached on a subjective basis. In contrast, in assessing whether the force used was reasonable in the circumstances as the accused believed them to be, the jury’s assessment is to be made on an objective basis.^[5]
[27] It is not in dispute that, in certain circumstances, self-defence may be available where the defendant takes pre-emptive action to defend himself or herself (or another) from a perceived threat. The authorities were discussed in some detail by this Court in R v Wang.^[6] After referring to earlier authorities in this Court,^[7] this Court stated:^[8]

It is accepted that in the context of self-defence “force” includes not only the use of physical power but a threat to use physical power. But what is reasonable force to use to protect oneself or another when faced with a threat of physical force must depend on the imminence and seriousness of the threat and the opportunity to seek protection without recourse to the use of force. There may well be a number of alternative courses of action open, other than the use of force, to a person subjected to a threat which cannot be carried out immediately. If so, it would not be reasonable to make a preemptive strike

[28] While the imminence of the threat is not treated as a distinct or separate requirement, the authorities have emphasised that the imminence or immediacy of the threat is a factor that is to be weighed in assessing whether the defence is available.^[9] This is a question of fact and degree. Amongst other things, the opportunities available to the defendant to seek protection or adopt some other alternative course of action are to be considered. The defendant must have seen himself or herself as under a real threat of danger and not merely believe there may be some future danger.^[10]
[29] These limitations are important since, where the danger is uncertain, or can otherwise be averted, recourse should be had to other means of avoidance.^[11] As the learned authors of a leading text put it, the justification of pre-emptive strike selfdefence “should not be used as a mask for retaliation or as a means of resolving [the defendant’s] misplaced anxiety concerning a future, possible or even imaginary attack.^[12]

Taking away self-defence from the jury

[30] The authorities establish that the trial judge has a gate-keeping function in determining when self-defence should be put to the jury. It is for the judge to decide whether there is evidence fit to be left to the jury which could be the basis for a plea of self-defence. If there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence, then the issue should be left to the jury. If, on the other hand, the judge is satisfied that it would be impossible for the jury to entertain a reasonable doubt that the defendant acted in the defence of himself or herself or another within the terms of s 48, then self-defence should be withdrawn from the jury.^[13]
[31] These principles were adopted by a full bench of this Court in R v Bridger.^[14] In this context, no distinction as to the respective roles of judge and jury is to be drawn between the various questions for the jury’s consideration. This Court in Wang rejected the argument that what amounts to reasonable force in the circumstances is always a question for a jury and never a point of law for the judge.^[15] These principles have been described by the Supreme Court in Young v R as settled law.^[16]
[32] We are satisfied the Judge acted correctly in withdrawing the plea of selfdefence from the jury. On the facts, taking the most favourable view from Mr Vincent’s perspective, there was no realistic possibility that the jury could entertain a reasonable doubt that Mr Vincent was acting in his own defence or in defence of Mr Pratt within the terms of s 48. We reach that conclusion for these reasons. It may be that Mr Vincent genuinely believed it was necessary for him to take the actions he did in the circumstances as he believed them to be. However, his actions could not be described as being taken in defence of himself or Mr Pratt. Neither was facing any imminent threat of force from Mr Stoneham. The incident involving the basketball and the ensuing scuffle had taken place some four days previously and there had been no material conduct on Mr Stoneham’s behalf since that time that could have increased Mr Vincent’s concerns that he was under imminent attack. His actions are more accurately described as retaliatory in nature.
[33] Significantly, Mr Vincent had a range of options reasonably available to him other than taking the action he did. He may have believed that the Corrections personnel at the prison were not taking adequate steps to secure his safety but he had the opportunity, for example, to seek the assistance of the Corrections officers and be placed in the separate regime that had existed in the period between 24 and 28 August. He had effectively removed himself from this separate regime and placed himself back into contact with Mr Stoneham. Finally, his actions in stabbing Mr Stoneham four times in the neck could not possibly be seen as a reasonable or proportionate response to a perceived threat of attack from a basketball in the exercise yard.
[34] Accordingly, this ground of appeal fails.

The jury questions

[35] The first question came at 12:15 pm on the last day of the trial. The jury asked to have a copy of the Crimes Act. The Judge declined to provide them with this pointing out there was only one section of the Crimes Act that was before them, namely the section relevant to the specific charge Mr Vincent was facing. The Judge informed the jury that if they had any particular aspects of the Crimes Act in mind, they could ask for further guidance.
[36] The second and third questions came from the jury and were answered by the Judge together at 1:19 pm. The second was, “Can we be provided with the charges above and below in seriousness of the current charge?” The Judge declined that request as well. He directed the jury that they must concentrate on the charge set out in the indictment and whether the Crown had proved each of the two ingredients of that charge beyond reasonable doubt.
[37] The third question asked:

Are we the Jury to define “serious harm” as Vincent’s view of serious harm or on our own view of serious harm?

[38] The Judge responded in these terms:

[6] As you know, the Crown are required to prove beyond reasonable doubt that the accused at the time the wounds were actually inflicted intended to cause really serious harm. It is the intention that the Crown must prove beyond reasonable doubt, not the result. It is immaterial that no great harm was actually occasioned. What is material, what is critical, what the Crown must prove beyond reasonable doubt is that it was his intention to cause really serious harm.

[7] Now the Crown say that you can infer that intention from all of the surrounding circumstances: what he said and did before, during and after.

[8] On the other hand, Mr Vincent says that the Crown have failed to prove that essential ingredient beyond reasonable doubt; that as he described to the police officer he may have intended physical suffering, immobility or to prevent Mr Stoneham from jeopardising his personal safety, but the Crown have failed to prove beyond reasonable doubt that his intention was to cause really serious harm.

[9] So it is the intention that the Crown must prove beyond reasonable doubt and it is the intention of really serious harm.

[10] So I hope that helps you. Thank you.

[39] The fourth and final question was answered at 2:29 pm. It was:

In relation to our previous question, are we the Jury to consider Vincent's understanding of really serious harm or our the Jury’s agreed understanding?

[40] The Judge’s response was in these terms:

[2] The understanding is one fixed objectively. In other words, it is your understanding of the words “really serious harm” and their meaning which is critical. The Crown must prove beyond reasonable doubt that the accused intended really serious harm. Really serious harm is your objective understanding of those words.

Jury questions — discussion

First and second questions

[41] Mr Lithgow submitted that the first two questions by the jury showed there was concern about where a charge under s 188(1) fell in the hierarchy of the various forms of assault criminalised by s 188(1) and (2) and by ss 189(1), 189(2) and 193. In particular, Mr Lithgow pointed out that there was a substantial difference in the maximum penalty for an offence under s 188(1) (14 years) and that under s 188(2) (7 years). The jury might have been concerned, for example, about whether a charge under s 188(2) might have been more appropriate. That would have required proof of an intent to injure or actions taken with reckless disregard for the safety of others rather than an intention to cause grievous bodily harm.
[42] Dealing with the first and second questions, we accept Mr Pike’s submission that the Crown was entitled to bring a single charge under s 188(1). In doing so, the Crown took the risk that the jury might conclude that the Crown had not proved its case beyond reasonable doubt. The prosecution case would therefore founder in the absence of any alternative lesser charge in the indictment unless the Judge were prepared to amend the charge.
[43] We do not accept Mr Lithgow’s submission that the jury should have been given the Crimes Act either in its entirety or at least so far as it related to the varying forms of assault proscribed in the Act. For good reason, it has long been the practice that juries are not informed of the penalty for the crimes at issue. Should a question about penalty arise, juries are routinely directed that they must concentrate on whether the Crown has proved the essential ingredients of the charge or charges before them and that any issue of penalty is irrelevant to their task.^[17]
[44] To permit any other course would risk a jury reaching a compromised verdict on the basis of the penalties applicable rather than deciding whether the Crown had proved the essential ingredients of the charges before them to the standard required. We add that allowing the jury to compare the degrees of seriousness required for other crimes not charged would be apt to cause confusion.

The third question

[45] As to the third question, Mr Lithgow’s submission was that the Judge had misunderstood the purport of the jury’s question and had not answered the jury’s concerns. He submitted that the jury’s concern was not what the Crown was required to prove but whether it was Mr Vincent’s view about the seriousness of the harm that mattered or whether it was for the jury to decide what constituted really serious harm.
[46] We agree that the Judge may have misapprehended the true nature of the jury’s question. This is confirmed by the fourth question the jury asked a little over an hour after the third. We will deal with that shortly. But the only separate point Mr Lithgow was able to take issue with under question three was the Judge’s statement that it was immaterial that no great harm was actually occasioned. In context, we do not see that there was any misdirection here. The Judge was entirely correct to point out that it was for the Crown to prove beyond reasonable doubt that Mr Vincent intended to cause really serious harm even if some lesser degree of harm than that actually occurred.^[18] Whether that intention was proved was a matter for the jury considering all of the surrounding circumstances.

The fourth question

[47] We are also satisfied that there was no misdirection in the Judge’s answer to the fourth question. In his written submissions, Mr Lithgow said that s 188(1) required that an accused intend a result which is known to him to be really serious harm. However, during argument, Mr Lithgow informed us that he was not suggesting that it was for Mr Vincent to decide what was really serious harm. Counsel submitted that the inference from Mr Vincent’s evidence is that the injuries actually caused were the injuries he intended since, on his evidence, the stabbing was deliberately calculated to be of a very limited compass and with limited consequences.
[48] It is not in dispute that grievous bodily harm means really serious harm,^[19] but several points need to be made in relation to s 188. First, there must be a connection between the harm caused and the intention required to be proved.^[20] Second, as earlier noted, there may be an intention to cause grievous bodily harm but it is not necessary for the Crown to prove that harm to that level of seriousness actually resulted. On the indictment in the present case, it was only necessary for the Crown to show that the victim was wounded. Third, in determining what the defendant’s intention was at the time of an assault, the jury must decide two questions: what type of harm did the defendant actually intend and did that amount to really serious harm?
[49] The focus of the first question is subjective in the sense that it is the defendant’s actual intention that must be determined. But the jury must consider all the evidence including the nature of the assault and the acts and statements made by the accused before, at, or after the event.^[21] In doing so, the jury may draw appropriate inferences from the proven facts in deciding what the appellant actually intended and whether that amounted to an intention to cause grievous bodily harm. As Mr Lithgow ultimately accepted, it is for the jury to determine the second question on an objective basis.
[50] In the present case, the Judge correctly directed the jury that it was for the Crown to prove beyond reasonable doubt that Mr Vincent intended to cause really serious harm to Mr Stoneham. The Judge also correctly directed the jury that it was for them to determine whether what Mr Vincent intended to do amounted to really serious harm.
[51] We do not accept counsel’s submission that the result of Mr Vincent’s actions reflected no more than what he intended to achieve, with the inference that this was something less than an intention to cause grievous bodily harm. We accept Mr Pike’s submission that it was entirely open to the jury to conclude that the Crown had proved beyond reasonable doubt that Mr Vincent intended to inflict really serious harm. On his own account, he intended to stab Mr Stoneham in the neck with a potentially lethal weapon for the purpose of immobilising him for an unspecified period. On any view, this constituted an intention to cause Mr Stoneham really serious harm. The injuries intended went well beyond a mere laceration or skin puncture and involved penetrating injuries to the muscles of the neck which Mr Vincent intended to be sufficient to achieve his goal of immobilising Mr Stoneham.
[52] We conclude that the appellant has not established any grounds to challenge the conviction.

The appeal against sentence

The Judge’s approach

[53] At sentence, the Crown submitted that the appropriate sentence should be at least six years imprisonment with no discount to reflect the fact that Mr Vincent was serving a lengthy sentence for a raft of property offences committed between 1999 and 2004. The Crown submitted that the sentence should be cumulative given the fact that the offending was essentially different in nature and kind from the many convictions Mr Vincent had already sustained. Mr Yeoman submitted as amicus that a sentence in the order of four to five years imprisonment would be appropriate.
[54] The Judge saw a number of aggravating factors. He considered Mr Vincent had developed an intense, almost irrational, dislike of Mr Stoneham. The attack had been planned and premeditated. Mr Vincent had made the knife and sharpened it. He approached the victim to put him at ease before attacking the victim from behind. This was cruel in the extreme; it was a callous act of total cowardice. The victim had been stabbed four times in the neck. The risk of life-threatening injury was obvious given the location of the spinal cord and major blood vessels in the neck.
[55] The Judge noted that the Crown did not seek any increase in the starting point on account of Mr Vincent’s lengthy list of previous convictions since none had involved violence.
[56] Dealing with Mr Vincent’s personal circumstances, the Judge noted that he was 49 years of age; he expressed no remorse or regret but had accepted responsibility for what he had done. There was much about Mr Vincent that the Judge considered showed a continuation of a sense of entitlement that he had openly displayed at his trial. The Judge recorded that Mr Vincent was not due to be released from his existing sentence until early 2015 and that he was almost certainly institutionalised.
[57] The Judge considered that a starting point of at least six years imprisonment was warranted and that a case for a higher starting point could be made. A cumulative sentence was appropriate and there was no basis for any downward adjustment to recognise totality principles. This was a truly serious offence in the Judge’s view and amounted to a serious and significant disruption to prison discipline. Accordingly, Mr Vincent was sentenced to six years imprisonment, cumulative on all of his current sentences of imprisonment.

Counsel’s submissions on sentence

[58] Mr Lithgow submitted that the sentence largely depended upon the Judge’s rejection of Mr Vincent’s evidence of his genuine concern for the threat posed by the victim. This was reflected by observations made by the Judge during sentencing that Mr Vincent had developed a completely irrational hatred of the victim; the Judge’s impression that there was almost a “jihadist” quality to the offending; and that Mr Vincent’s sense of entitlement was a “complete mystery”.
[59] Mr Lithgow submitted the Judge had not made any allowance for the custodial context of the offending or the stresses and frustrations that may develop in that context where prisoners are incarcerated for long periods in close proximity to other prisoners. Counsel also submitted that the Judge ought to have considered whether something equivalent to excessive self-defence was a factor mitigating culpability in Mr Vincent’s case.
[60] We note that both excessive self-defence and provocation are listed as potential mitigating factors for grievous bodily harm offending in R v Taueki.^[22] However Mr Vincent’s actions fit into neither of these categories. This Court noted in Taueki that for provocation to justify a lower starting point, there needed to be serious provocation which was an operative cause of the violence and which remained an operative cause throughout the commission of the offence. There was no operative provocation at the time of the attack and no basis to find that Mr Vincent’s actions amounted to excessive self-defence or something analogous to it.
[61] Mr Lithgow submitted that the Court might consider substituting a lesser charge under s 386(2) of the Crimes Act. For example, a charge under s 188(2) might better reflect Mr Vincent’s culpability. Mr Lithgow’s final submission was that the starting point of six years was too high. Five years would have been more appropriate with an ultimate sentence of two to three years imprisonment.
[62] For the Crown, Mr Pike accepted that the sentence was stern but submitted it nevertheless fell comfortably within band 2 in the R v Taueki which would support a sentence in the range of five to 10 years.^[23] While the risk of very grave injury was self-evident, he acknowledged there was no permanent disability. Nevertheless the gravity of the charge was in the intent underlying the stabbing. The factors relevant in terms of Taueki were the long period of premeditation, the manufacture and use of a deadly weapon, attacking a particularly vulnerable part of the victim’s body and the dangerous ideation displayed.^[24]

Sentence appeal — discussion

[63] We consider the Judge took a more serious view of the offending than was justified in all the circumstances. We accept that the offending falls within band 2 of the levels of culpability identified in the R v Taueki and that the Judge correctly identified the aggravating factors. But we consider the level of culpability falls at the bottom end of the five to 10 year range adopted in R v Taueki for band 2 offending. A starting point of five years imprisonment was appropriate.
[64] We have also reached the view that the Judge ought to have made some allowance for several mitigating factors. First, while we accept that the nature of Mr Vincent’s attack on the victim carried very serious risks, the injuries actually sustained were relatively minor and did not result in any permanent disability. Second, we consider the Judge ought to have made some allowance for Mr Vincent’s circumstances at the time of the attack. He had been in prison for at least seven years at the time of the offending and, as the Judge acknowledged, had become institutionalised. While his fears may have been irrational, it is evident they were genuinely held. We accept that the need to uphold prison discipline required a sentence of sufficient severity to act as a deterrent against conduct of this kind, but some allowance should have been made for the frustrations that inevitably arise where inmates are forced together in close quarters over lengthy periods of time with minimal periods allowed each day outside their cells.
[65] In all the circumstances an allowance of 6 months for these factors would have been appropriate, resulting in an end sentence of four and a half years imprisonment. It follows that the sentence of six years imposed was manifestly excessive.

Result

[66] The appeal against conviction is dismissed but the appeal against sentence is allowed. The sentence of six years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted, cumulative upon all existing sentences.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Vincent DC Wellington CRI-2012-078-1364, 28 November 2013.

^[2] R v Vincent DC Wellington CRI-2012-078-1364, 7 November 2013.

^[3] See for example, R v Li CA140/00, 28 June 2000 at [22], R v Hackell, CA131/02, 10 October 2002, at [11]; Makatea v R [2010] NZCA 50 at [19]; and R v Bridger [2003] 1 NZLR 636 (CA) at [18].

^[4]

^[5] R v Wang [1990] 2 NZLR 529 (CA) at 535.

^[6] Wang, above n 5, at 535–536.

^[7] R v Terewi (1985) 1 CRNZ 623 at 625 and R v Ranger (1988) 4 CRNZ 6.

^[8] Wang, above n 5, at 535–536.

^[9] Leason v Attorney-General [2013] NZCA 509; [2014] 2 NZLR 224 (CA) at [53]–[54].

^[10] R v Savage [1991] 3 NZLR 155 (CA) at 158.

^[11] R v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 (CA) at [12].

^[12] Andrew P Simester and Warren J Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, 2012) at 521. See also R v Leuta, above n 11, at [13].

^[13] R v Wang, above n 5, at 534, citing R v Tavete [1988] 1 NZLR 428 (CA) and R v Kerr [1976] 1 NZLR 335 (CA). See also, R v Hackell, above n 13, at [17].

^[14] R v Bridger, above n 3, at [21].

^[15] R v Wang, above n 5, at 536–537, adopted also in R v Bridger, above n 3, at [21].

^[16] Young v R [2006] NZSC 38 at [4].

^[17] R v Sharplin (1997) 14 CRNZ 682 (CA) at 685–686; R v Lorimer [1966] NZLR 985 (CA) at 988 citing Attorney-General v South Australia v Brown [1960] AC 432 (PC) at 454. See also the discussion in Tere v R [2013] NZCA 282 (CA) at [37]–[49].

^[18] R v Hunt (1825) 168 ER 1198 (Cr C R). See also Simester & Brookbanks, Principles of Criminal Law, above n 12, at [17.3.6].

^[19] R v Waters [1979] NZCA 24; [1979] 1 NZLR 375 (CA) at 379; Director of Public Prosecutions v Smith [1961] AC 290 (HL) at 334 and R v Scott [2007] NZCA 589 at [31].

^[20] R v Tihi [1989] 2 NZLR 29 (CA) at 31–32.

^[21] See Simester & Brookbanks, Principles of Criminal Law, above n 12, at [17.3.6].

^[22] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [32].

^[23] R v Taueki, above n 22, at [34], [38]–[39].

^[24] R v Taueki, above n 22, at [31].