Coulter v The Queen - [2013] NZCA 336

IN THE COURT OF APPEAL OF NEW ZEALAND

CA234/2013

[2013] NZCA 336

BETWEEN	MICHAEL PHILLIP COULTER Appellant
AND	THE QUEEN Respondent

CA239/2013
AND BETWEEN	BRODIE O'ROURKE Appellant
AND	THE QUEEN Respondent

Hearing:	17 July 2013
Court:	Wild, Heath and Keane JJ
Counsel:	F E Guy Kidd for Appellants B D Tantrum for Respondent
Judgment:	17 July 2013
Reasons:	30 July 2013 at 3 pm

JUDGMENT OF THE COURT

ABoth appellants are granted leave to appeal out of time.
BThe conviction of each appellant for aggravated wounding under s 191(1)(a) of the Crimes Act 1961 is quashed.
CIn the case of each appellant a conviction for wounding with intent to injure under s 188(2) of the Crimes Act 1961 is substituted.
DUpon the substituted conviction the appellant Coulter is sentenced to one year and nine months imprisonment.
EUpon the substituted conviction, the appellant O’Rourke is sentenced to two years and three months imprisonment.

FThe order that each appellant pay Mr Maynard $3,000 reparation stands.

REASONS OF THE COURT

(Given by Wild J)

Introduction

We gave judgment in this appeal in terms of A–E above following the hearing on 17 July, indicating that our reasons would follow. These are our reasons, which include, in [18], our explanation for adding F.

Background

The appellants were two of a group of eight (five men, three women) who were charged with aggravated wounding under s 191(1)(a) of the Crimes Act 1961 and kidnapping under s 209(b) of the Crimes Act.
Some of the group had been involved in buying ecstasy (MDMA) from a man called Jason Maynard. When they found that the substance Mr Maynard had sold them was a mixture of flour and brown sugar, they set about attempting to recover the $740 they had paid Mr Maynard.
After the group located Mr Maynard in Queenstown they attacked him, punching him around the face and upper body. After Mr O’Rourke head-butted Mr Maynard he fell to the ground where the others began kicking him and punching him in the face and upper body. When Mr Maynard managed to get up and strike one of the group, Mr O’Rourke prevented further resistance by holding a meat cleaver to Mr Maynard’s throat.
The two appellants then escorted Mr Maynard to a car, Mr O’Rourke again head-butting Mr Maynard on the way, causing him to crumple to the ground. The two appellants got Mr Maynard up and forced him into the back seat of the car. The appellant Mr O’Rourke got in beside Mr Maynard.
The car was then driven off, but was pursued by Mr Maynard’s girlfriend in another vehicle. When the driver could not lose the pursuing vehicle, she stopped and Mr Maynard was pushed out of the car on to the side of the road.
As a result of the offending Mr Maynard suffered suspected concussion, multiple contusions and abrasions; was in hospital overnight; and was off work for several days.

Conviction – no aggravated wounding?

The indictment, in charging each of the group…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coulter v The Queen

Details

AGLC: Coulter v The Queen [2013] NZCA 336
Case: [2013] NZCA 336
Decision Date: 17 July 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with the appeals of Michael Phillip Coulter and Brodie O'Rourke, who were convicted of aggravated wounding under s 191(1)(a) of the Crimes Act 1961 and kidnapping under s 209(b) of the Crimes Act. The appellants were part of a group that had attempted to recover $740 paid for a substance they believed to be ecstasy but was actually a mixture of flour and brown sugar. After locating Jason Maynard, they assaulted him, causing him multiple injuries. The appellants were convicted of aggravated wounding with intent to commit theft and kidnapping. The legal issues before the court were whether the appellants could be guilty of aggravated wounding under the circumstances and the appropriate sentence for their crimes.

The court found that the Crown's concession that the appellants could not be guilty of aggravated wounding was valid. The court did not address whether the appellants had the intent to commit theft as it was not argued before them. Instead, they allowed the appeal against conviction and substituted the conviction of each appellant for wounding with intent to injure under s 188(2) of the Crimes Act. The court agreed with the submissions of counsel for the appellants regarding the appropriate sentence for each appellant, taking into account their respective roles in the offending, the seriousness of the crimes, and the discounts for their early guilty pleas and willingness to pay reparation to the victim. The court also confirmed that the order for each appellant to pay $3,000 reparation to Mr Maynard remained in effect.

In summary, the Court of Appeal of New Zealand quashed the convictions of Michael Phillip Coulter and Brodie O'Rourke for aggravated wounding and substituted the conviction for wounding with intent to injure under s 188(2) of the Crimes Act. The court sentenced Coulter to one year and nine months imprisonment and O'Rourke to two years and three months imprisonment. The order for each appellant to pay $3,000 reparation to Mr Maynard was upheld.

Orders