R v McGregor - [2007] NZCA 435

IN THE COURT OF APPEAL OF NEW ZEALAND
CA320/07
[2007] NZCA 435
THE QUEEN
v
WAYNE DARREN MCGREGOR
Hearing:18 September 2007

Court:Ellen France, John Hansen and Wild JJ
Counsel:G Mason for Appellant

T Smith for Crown

Judgment:10 October 2007 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL, WHICH IS AGAINST SENTENCE, IS DISMISSED.
REASONS OF THE COURT
(GIVEN BY WILD J)
Introduction
[1]       Mr McGregor appeals against a sentence of five and a half years imprisonment imposed on him by Judge Atkins QC in the District Court at Palmerston North on 26 June. Mr McGregor was convicted following trial, the jury having found him guilty both of assault with a weapon and wounding with intent to cause grievous bodily harm.
[2]       Mr Mason took four points in support of the appeal:
·     The Judge wrongly classified the victim as vulnerable, and thus wrongly treated the vulnerability of the victim as an aggravating factor in terms of R v Taueki [2005] 3 NZLR 372 at [31(i)] (CA).
·     The Judge wrongly classified the case as coming within band two of Taueki.
·     The sentence failed to make proper allowance for the mitigating features.
·     The sentence was manifestly excessive.

The facts
[3] Mr McGregor was working on a building site in Pahiatua. He was employed by Mr Jane. Together with a third worker (Mr McGregor’s son), they were digging holes for foundations. Mr Jane suggested that Mr McGregor and his son dig separate holes, rather than the same one together. Mr McGregor reacted to this suggestion by walking over to where Mr Jane was digging a hole and swinging his shovel at Mr Jane striking him on the upper arm and felling him to the ground. That was the assault with a weapon. While Mr Jane was lying on the ground, covering his head with his arms for protection, Mr McGregor struck him a second blow on the back of the head. This was the offence of wounding with intent to cause grievous bodily harm.
[4] When passing sentence, Judge Atkins noted Crown counsel’s description of the second blow at [11] as:
[A]dministered by your holding the shovel in both hands across your body with the blade downwards, you then driving the tip of the shovel into the back of the head of the victim … [O]ne of the two medical specialists treating the victim considered [his] injuries would have required significant direct force to be applied to the victim’s skull.

[5] The first blow caused only grazing to Mr Jane’s arm, but the second required seven stitches in Mr Jane’s head. That blow also caused subdural bleeding which, at the date of sentence, was continuing to cause Mr Jane problems, because it burst a blood vessel on the surface of Mr Jane’s brain.
[6] The physical and mental consequences of the head wound eventually caused Mr Jane to close down his contracting company, and he left New Zealand with his family to take up an office job in…

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 McGregor

Details

AGLC: R v McGregor [2007] NZCA 435
Case: [2007] NZCA 435
Decision Date: 10 October 2007

CaseChat Overview and Summary

Wayne Darren McGregor was the appellant in this case, which involved an appeal against a sentence of five and a half years imprisonment imposed by Judge Atkins QC in the District Court at Palmerston North. Mr McGregor was convicted of assault with a weapon and wounding with intent to cause grievous bodily harm. The appellant's counsel, G Mason, took four points in support of the appeal: the Judge wrongly classified the victim as vulnerable and thus wrongly treated the vulnerability of the victim as an aggravating factor; the Judge wrongly classified the case as coming within band two of Taueki; the sentence failed to make proper allowance for the mitigating features; and the sentence was manifestly excessive.

The Court of Appeal found that the Judge had not erred in classifying the victim as vulnerable and treating the vulnerability of the victim as an aggravating factor. The Court also found that the Judge was correct in classifying the case as coming within band two of Taueki. The Court did not accept that the Judge had failed to take account of mitigating features or that the sentence was manifestly excessive. The appeal was dismissed, and the sentence of five and a half years imprisonment was upheld.

The Court of Appeal held that the Judge had not erred in classifying the victim as vulnerable and treating the vulnerability of the victim as an aggravating factor. The Court found that the victim was particularly vulnerable when the appellant attacked him for the second time with his shovel while he was lying defenceless and vulnerable on the ground. The Court also held that the Judge was correct in classifying the case as coming within band two of Taueki. The Court found that the use of a weapon, the fact that the blow was struck to the head, and the degree of vulnerability on the part of the victim when it came to the striking of the second blow, all classified the case as coming within band two of Taueki. The Court of Appeal did not accept that the Judge had failed to take account of mitigating features or that the sentence was manifestly excessive. The Court found that the Judge had properly considered the mitigating features and that the sentence was not manifestly excessive. The appeal was dismissed, and the sentence of five and a half years imprisonment was upheld.

Orders