| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA221/2012 [2013] NZCA 290 |
| BETWEEN | MICHAEL ANZAC JOSEPH |
| AND | THE QUEEN |
| Hearing: | 19 June 2013 |
Court: | Wild, Miller and MacKenzie JJ |
Counsel: | A J S Snell and M J Phelps for Appellant |
Judgment: | 9 July 2013 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Joseph (aka Fox) appeals both against conviction and sentence.
At trial in the District Court at Gisborne in February 2012 the jury found Mr Joseph guilty on one count of wounding with intent to cause grievous bodily harm (GBH) and a second count of injuring with intent to injure. He was acquitted on a further count of injuring with intent to injure.
Judge D M Wilson QC subsequently sentenced Mr Joseph to six and a half years imprisonment.[1]
[1]R v Joseph DC Gisborne CRI-2011-016-675, 28 March 2012.
Mr Joseph appeals against his two convictions on the ground that the Judge needed to – but did not – give the jury an identification warning, either in terms of s 126 of the Evidence Act 2006, or along the lines suggested by this Court in R v Turaki. [2] In the result, justice miscarried.
[2]R v Turaki [2009] NZCA 310 at [90].
The basis for Mr Joseph’s sentence appeal is that two things combined to produce a sentence that was manifestly excessive. The first was the Judge’s failure to reflect “excessive self-defence” in his sentencing starting point; the second too great an uplift for the injuring with intent to injure conviction.
Factual background
This case concerns two successive incidents of street violence in Gisborne in the early hours of 20 February 2011.
The Stanley Rd wounding
Mr Joseph was returning, with his partner Ms Campbell, from a reggae concert. While walking along Stanley Rd they became involved in an altercation. It involved another couple, Mr Grace and his partner Ms Mua. There was a suggestion a third man may also have been involved.
While fighting with the other man or men, Mr Grace sustained a number of wounds to his chest, abdomen, lower back and arm. Surgery was required for one of the wounds, stitches for all of them.
Mr Grace did not see the weapon used to inflict the wounds, indeed he did not immediately realise he had been wounded. The Crown alleged that Mr Joseph had smashed a glass bottle and used the neck of the bottle to inflict the wounds. When sentencing Mr Joseph the Judge said that he was not clear what had been used to inflict the wounds.
While the men were fighting, so also were Ms Campbell and Ms Mua.
The Childers Rd injuring
After Mr Grace had collapsed on the road bleeding, Mr Joseph and Ms Campbell left the scene. They went on down Stanley Rd and turned left into Childers Rd. They were pursued…
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- Joseph v The Queen [2013] NZCA 290
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- [2013] NZCA 290
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