Coulter v The Queen
[2013] NZCA 336
•17 July 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA234/2013 [2013] NZCA 336 |
| BETWEEN | MICHAEL PHILLIP COULTER |
| AND | THE QUEEN |
| CA239/2013 | |
| AND BETWEEN | BRODIE O'ROURKE |
| AND | THE QUEEN |
| Hearing: | 17 July 2013 |
Court: | Wild, Heath and Keane JJ |
Counsel: | F E Guy Kidd for Appellants |
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 with aggravated wounding under s 191(1)(a) of the Crimes Act, alleged wounding “with an intent to commit a crime, namely theft”.
In dealing with the appellants’ co-accused, two Judges have held that the accused could not have been guilty of theft in the circumstances here. First, on 12 December 2012, Judge Moran reached that conclusion in respect of the three female co-accused.[1] Secondly, on 8 April 2013, Whata J reached the same conclusion in allowing an appeal by one of the male co-accused.[2] That resulted in the following concession by the Crown in respect of the present appellants:
The Crown accepts that, in light of Whata J’s decision, it would be unjust to deny the appellants the same claim of right defence as their co-offenders. In the circumstances, the Crown acknowledges that the appeal against conviction ought to be allowed.
[1]R v Faul DC Invercargill, CRI-2011-059-001380, 12 December 2012.
[2]Coupe v Police [2013] NZHC 717.
In allowing the appeal against conviction, we acted upon that concession. We record that whether the accused, in committing violence on Mr Maynard, also had the intent to commit the crime of theft against him, was not an issue argued before us. Our judgment on these appeals is therefore not to be interpreted as necessarily endorsing the judgments of Judge Moran and Whata J.
Sentence
Ms Guy Kidd made careful and sensible submissions on sentence. She accepted that the appellant Mr O’Rourke’s culpability was greater “given his action in head-butting the victim to the ground initially and in putting the edge of the blade against the victim’s throat”. She submitted that a starting point of no more than three years three months imprisonment would be appropriate to reflect his culpability. She then argued that an uplift of no more than nine months was appropriate for the kidnapping, yielding a total starting point of no more than four years imprisonment.
For the appellant Mr Coulter, Ms Guy Kidd’s suggested starting point was two years nine months imprisonment, given that he had not carried a weapon or worn a disguise (some of the co-accused had donned balaclavas and Mr O’Rourke had changed in order to cover up his tattoos). She suggested an uplift for Mr Coulter of no more than six months given that he had not gone in the car with Mr Maynard. That produced a total starting point of three years and three months imprisonment.
From those respective starting points Ms Guy Kidd submitted that each appellant was entitled to the same 25 per cent discount adopted by Judge Phillips in sentencing three of the male co-accused in the Queenstown District Court.[3] She pointed out that the two appellants had handed themselves in to the police, made full admissions and had each offered $3,000 reparation to Mr Maynard. Whata J had adopted the same discount when re-sentencing the co-accused Mr Coupe after allowing his appeal.
[3]R v Coulter DC Queenstown CRI-2011-059-1380, 19 June 2012.
Finally, Ms Guy Kidd argued that the two appellants were entitled to a full discount of 25 per cent to reflect the fact that they had always indicated a willingness to plead guilty to a charge of wounding with intent to injure under s 188(2) of the Crimes Act.
The result of all this was that Ms Guy Kidd contended for an end sentence “of around 22 months imprisonment” for Mr Coulter and “no more than 27 months (two years and three months)” for Mr O’Rourke.
In his oral submissions to us, Mr Tantrum essentially accepted those end sentences as appropriate. He endorsed the way in which Ms Guy Kidd had arrived at them.[4]
[4]Mr Tantrum actually contended for an end sentence of one year 10 months imprisonment for Mr Coulter, but did not really cavil with one of one year and nine months imprisonment.
We were also satisfied that the end sentences contended for by Ms Guy Kidd were appropriate based on the guidelines this Court gave in R v Harris[5] and by comparison with the sentences this Court upheld in Joblin v R.[6] The respective starting points for the wounding and the uplifts for the kidnapping reflect the seriousness of the offending. The discounts are appropriate, the first discount in particular reflecting obviously genuine regret and remorse. The end sentences achieve parity with the sentences imposed on the co-accused.
[5]R v Harris [2008] NZCA 528.
[6]Joblin v R [2011] NZCA 585.
We end by making it clear that the order in respect of each appellant to pay $3,000 reparation to Mr Maynard stands. It was not contested on appeal, indeed the other sentences factor it in.
Solicitors:
A W S Legal, Invercargill for Appellants
Crown Solicitor, Auckland for Respondent
3
0