R v Donnan - [2009] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND
CA532/2008
[2009] NZCA 171
THE QUEEN
v
JAMES NICHOLAS DONNAN
Hearing:29 April 2009

Court:Robertson, Chisholm and Gendall JJ
Counsel:J W Clearwater for Appellant

F E Guy Kidd for Crown

Judgment:6 May 2009 at 9.30 am

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Mr Donnan was found guilty, after trial by jury, of wounding with intent to cause grievous bodily harm. He was sentenced by Courtney J to four years’ imprisonment: HC AK CRI 2006-044-008749 22 August 2008. He appeals against conviction on the basis of alleged misdirections on the elements of the count, party liability and intoxication, and against sentence on the basis that it was manifestly excessive and unjustifiably disparate with a co-accused.
Background
[2]       In her sentencing notes, Courtney J said:
[2]       … early in the morning of 16 December 2006. You were both in Mr Maddock’s car driving up Chartwell Avenue in Glenfield. Mr Maddock was driving. You drove past a straggling group of young people. There were about 11 of them. They had all been to a dance party for underage teenagers in Glenfield and were walking home. Some were drunk, some were not. Mr Maddock, you pulled up just ahead of the group. It was never clear to me from the evidence why that was. There was a suggestion that you believed something had been thrown at the car though I am not at all satisfied, having heard the evidence, that this was so. In any event the two of you got out of the car and within a short time an altercation started a little way down the street which eventually involved both of you and several of the teenagers.
[3]       At about that stage during the altercation one of the teenagers did throw something at the car and he said that he did in his evidence. That caused you to return to the car. I am satisfied on the evidence, as obviously the jury was, that Mr Maddock at that stage you retrieved your chef’s knife from the car, which you had brought home from work with you, and at the sight of the knife the teenagers scattered. It was after that that the events that have given rise to these charges unfolded.
[4]       Mr Maddock, you proceeded up Chartwell Ave where some of the teenagers had gone. The youngest of the group was Dayne Maxwell. He was then 15 years old and quite drunk. He had not been involved in the earlier altercation. The evidence, which the jury clearly accepted, was that you chased Dayne Maxwell across the road and when you caught up with him on the other side you stabbed him with your knife. He fell to the ground and you continued to stab at him. Fortunately most of the approximately dozen blows that you attempted to inflict did not connect with Dayne’s body. However, three…

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 R v Donnan

Details

AGLC: R v Donnan [2009] NZCA 171
Case: [2009] NZCA 171
Decision Date: 6 May 2009

CaseChat Overview and Summary

The appellant, James Nicholas Donnan, appealed his conviction for wounding with intent to cause grievous bodily harm and his sentence of four years' imprisonment. The appellant argued that the trial judge had misdirected the jury on the elements of the offence, party liability, and intoxication. Additionally, the appellant claimed that the sentence imposed was manifestly excessive and unjustifiably disparate with his co-accused, Mr Maddock. The Court of Appeal dismissed both the appeal against conviction and the appeal against sentence.

The legal issues in the appeal against conviction were whether the trial judge had misdirected the jury on the elements of the offence, party liability, and intoxication. The appellant argued that the trial judge did not properly explain the knowledge and intention required for secondary party liability under s 66(1). The Crown contended that the judge's directions were appropriate, given the way the case was presented, and that the jury handout adequately covered the necessary mental elements. The Court of Appeal found that the trial judge's directions were appropriate and that the jury handout was complete. Therefore, the grounds of appeal against conviction were not sustained.

The legal issue in the appeal against sentence was whether the sentence was manifestly excessive and unjustifiably disparate with the co-accused. The appellant argued that his sentence should have been lower due to his secondary role in the offence, his positive pre-sentence report, and his expressions of remorse. The Crown submitted that the sentence was within the appropriate range, considering the joint nature of the assault and the aggravating features present. The Court of Appeal found that the trial judge's sentence was within the available range and did not impose a sentence outside of that range. Consequently, the appeal against sentence was also dismissed.

Orders