Upload
others
View
2
Download
0
Embed Size (px)
Citation preview
VINCENT v R CA870/2013 [2015] NZCA 201 [27 May 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
A The appeal against conviction is dismissed.
B The appeal against sentence is allowed.
C 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.
1 R v Vincent DC Wellington CRI-2012-078-1364, 28 November 2013.
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
2 R v Vincent DC Wellington CRI-2012-078-1364, 7 November 2013.
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 self-defence 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
well-established 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
gate-keeping 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 48:34
(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
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
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
pre-emptive 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
self-defence “should not be used as a mask for retaliation or as a means of resolving
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 [2014] 2 NZLR 224 (CA) at [53]–[54].
10 R v Savage [1991] 3 NZLR 155 (CA) at 158.
11 R v Leuta [2002] 1 NZLR 215 (CA) at [12].
[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
self-defence 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
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].
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.
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].
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.
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].
[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
19
R v Waters [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].
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
22
R v Taueki [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].
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