R v Malcolm - [2023] NZHC 3024

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-083-969

[2023] NZHC 3024

THE KING

v

RICHARD TE MURA O TE AHI MALCOLM

Sentencing: 30 October 2023

Counsel:

J J Harvey for the Crown

J H Waugh for Mr Malcolm

Judgment:

30 October 2023

SENTENCING NOTES OF GWYN J

Introduction

[1] Richard Malcolm, on 24 May 2023,1 I gave you a sentence indication. I said that if you pleaded guilty to one charge of causing grievous bodily harm with intent,2 I would set a sentence of four years and eight months’ imprisonment, with the possibility of further discounts after pre-sentence reports were received.

[2] You accepted the sentence indication and pleaded guilty to causing grievous bodily harm with intent. You now appear before the Court for sentencing.

1 R v Malcolm HC Whanganui CRI-2022-083-969, 24 May 2023 (sentence indication of Gwyn J).
2 Crimes Act 1961, s 188(1). The maximum penalty is 14 years’ imprisonment.

R v MALCOLM [2023] NZHC 3024 [30 October 2023]

Background

The offending

[3] Because sentencing is a public exercise, it is necessary to explain the facts leading to the charge of causing grievous bodily harm with intent to which you have pleaded guilty.

[4] On 19 July 2022, at approximately 8.00 am, you had an argument with your partner at an address in Castlecliff, Whanganui. You left the address in your vehicle, a Toyota Estima, and parked on the road outside a neighbouring address. The argument between you and your partner continued on the roadside — you were inside your vehicle, while your partner was outside.

[5] The victim, Mr M, who is your partner’s stepfather, went out to the roadside to tell you to leave. Mr M was standing on the grass verge outside the address, close to the shared driveway. You reversed your vehicle around into an adjoining street and lined up your vehicle to where Mr M was standing, accelerated towards him, and knocked him to the ground. You did not stop the vehicle and continued to drive over the grass verge. Mr M was dragged underneath the car for between five and 10 metres. He was left motionless on the grass verge.

[6] You drove away without stopping to check if Mr M had any injuries. You drove to an associate’s address in Aramoho, Whanganui, and parked in front of two other vehicles in an attempt to hide your car from the roadside and evade the Police.

[7] An ambulance took Mr M to Whanganui Hospital. He was on life support for a number of weeks. He suffered a spinal cord injury resulting in paraplegia, vascular injuries, bilateral rib fractures, bone fractures, and lacerations to his scalp and ears.

[8] Before I come to consider your sentence, I want to mention the Victim Impact Statements provided by Mr M and his partner and to thank them for making those statements. It is fundamentally important for members of the community who have been affected…

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 Malcolm

Details

AGLC: R v Malcolm [2023] NZHC 3024
Case: [2023] NZHC 3024
Decision Date: 30 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The King v Richard Te Mura o Te Ahi Malcolm involved a sentencing hearing for causing grievous bodily harm with intent. The defendant, Richard Malcolm, had pleaded guilty to the charge following a violent altercation in which he used his vehicle to assault the victim, resulting in severe and permanent injuries. The court, presided over by Gwyn J, considered the aggravating factors of extreme violence, serious injury, and use of a weapon, as well as the mitigating factors presented in pre-sentence reports, including Malcolm's challenging background, expressed remorse, and willingness to participate in restorative justice and rehabilitation programs. Gwyn J determined an appropriate starting point of five years and 10 months imprisonment, applying discounts for the guilty plea, background circumstances, and remorse, resulting in a final sentence of three years and seven months imprisonment. Additionally, Malcolm was disqualified from driving for two years upon his release from custody. The Crown's charge of attempted murder was withdrawn.

Orders