Reyland v The Queen
[2004] NZCA 143
•13 July 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA439/03
THE QUEEN
v
CRAIG DAVID REYLAND
Hearing:28 June 2004
Coram:O'Regan J
Goddard J
Chisholm JAppearances: J H M Eaton for Appellant
M F Laracy for Crown
Judgment:13 July 2004
JUDGMENT OF THE COURT DELIVERED BY O’REGAN J
[1] The appellant, Mr Reyland, was convicted following a jury trial at the High Court in Greymouth of one charge of wounding with intent to cause grievous bodily harm. The trial Judge, Panckhurst J, sentenced him to imprisonment for a term of four and a half years. Mr Reyland appeals to this Court against both the conviction and the sentence.
The facts
[2] The incident leading to the charge against the appellant took place outside a bar in Greymouth just after midnight on 22 August 2003. The complainant had been drinking in the bar since the early afternoon and the appellant had been drinking in the bar since earlier in the evening. Prior to the incident the complainant and the appellant, along with some others, had gone outside the bar to smoke a marijuana cigarette.
[3] It seems that the complainant and the appellant were left outside the bar on their own, and that a fight then broke out. The complainant thought that the appellant had head butted the complainant, but had little recall of the incident after that. He said he remembered holding the appellant in a headlock and thought he had the better of the appellant. He remembered feeling something touching his back, and the back of his neck, but did not realise until later that these touches were in fact stab wounds inflicted on him by the appellant.
[4] The appellant said in a police statement made on 26 August 2003 that an altercation had broken out between him and the complainant following verbal abuse. He denied that he had head butted the complainant. The appellant said the complainant was holding him in a headlock which made it hard for the appellant to breathe. He said he asked the complainant to stop but the headlock continued and he felt he was being strangled. He said that he couldn’t breathe and couldn’t move, and that having asked the complainant to let him go without success, he then tried to force the complainant to let him go by punching the complainant. This didn’t work and so the appellant then reached into his pocket, opened his pocket knife and began hitting the complainant with the knife in his back. The appellant said he had cut his forefinger when struggling to open the knife and a cut was visible on his finger during the interview with the police.
[5] One of the witnesses, who was the bartender, said that after the complainant, the appellant and others had gone outside for the marijuana cigarette, she had noticed the appellant come back and go into the toilets. She said he then went back outside and the altercation with the complainant ensued. She did not think the fight was serious, and took no action at first, but then saw them both rolling round on the ground and tried to split them up. When she failed to do this she called to another patron in the bar to assist her. She said that the participants in the fight were on the ground and she did not see the complainant holding the appellant in a headlock, nor did she see any head butt.
[6] The patron who went to the bartender’s assistance said that he was intoxicated at the time. His evidence was that when he went to assist, the appellant and the complainant were on the ground rolling to and fro. He said they were face to face and chest to chest when he saw them, and the appellant was on top. He did not notice the knife until the appellant stood up and did not realise the complainant was injured until he put his arm around him.
[7] The injuries to the complainant were serious. There were seven stab wounds, some of them ten centimetres deep, and two of them punctured his lungs causing the lungs to collapse. He required extensive medical treatment and was incapacitated for some time.
[8] The doctor who attended on the complainant after the incident gave evidence that the complainant was intoxicated but was easy to deal with. He said that the complainant had told him that he had been head butted and had decided to choke the person [the appellant] to unconsciousness. The doctor described the complainant as coherent and co-operative when giving this description. The complainant did not recall making this remark to the doctor but accepted that he may have done so.
[9] The appellant’s version of events was given during an interview undertaken at the request of the officer in charge of the case some three days after the incident. The appellant had voluntarily attended the Greymouth Police Station on the Saturday morning after the incident (i.e. about 33 hours after the incident), had been arrested and charged, and had been in police custody during the period up to the time of the interview. The day before the interview the officer in charge had made preliminary disclosure to the appellant’s counsel, which consisted of copies of the records of the statements of the complainant, the bartender and the patron who had assisted the bartender. However, this disclosure did not include a record of the interview with the doctor who attended the complainant, so that, at the time the appellant made a statement, he was not aware that the complainant had told the doctor of the complainant’s intention to choke the appellant to unconsciousness.
The trial
[10] The trial took place at the High Court at Greymouth on 3 and 4 November 2003. The jury retired to consider their verdict just after midday on 4 November 2003, and returned with the guilty verdict about 20 minutes later. The sentencing of the appellant took place on the day after the verdict, 5 November 2003.
[11] The single issue at the trial was self defence. The appellant relied upon the version of events he gave to the police during his interview on 26 August 2003. In essence, the appellant’s case was that the complainant had him in a headlock and was strangling him, he felt he was about to lose consciousness, and he opened the knife and used it to cause the complainant to release him from the headlock.
Appeal against conviction
[12] Counsel for the appellant, Mr Eaton, advanced two separate grounds of appeal against conviction. These were:
(a) Misdirection as to the law of self defence;
(b)Misdirection regarding the appellant’s out of court statement.
Self defence
[13] There have been a number of cases in recent years which have involved consideration by this Court of the appropriate direction to be given to juries in cases where self defence is an issue: R v Li and Wu CA140/00, 141/00, 28 June 2000, R v Hackell CA131/02, 10 October 2002, R v Bridger [2003] 1 NZLR 636, R v Howard (2003) 20 CRNZ 319 and R v Styles CA297/03, 6 November 2003. In Li this Court said that the preferable approach to be adopted in the direction to a jury on self defence is that taken by Tipping J in Shortland v Police HC INV AP74/95 23 April 1996; Adams CA48.07. The Court described that approach as follows [at paras [22] and [23]]:
In summary, on this approach the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used in self-defence was actually reasonable.
This formulation clearly indicates where a subjective or an objective test is to be applied but wisely avoids the use of those terms which may not be familiar to all jury members.
[14] The judgments of this Court in Hackell, Howard, Bridger and Styles all refer to the three questions referred to in the Li decision in slightly (but not materially) different terms.
[15] In Howard, at para [23], this Court outlined the approach which judges should take to their directions on self defence as follows:
Section 48 is a simple comprehensive provision. Judges should be wary of giving it unnecessary embellishment. They should in general read the terms of s48, direct the jury to the three questions repeated above [being the same three questions outlined earlier in this judgment] and make any necessary linkages to the evidence.
[16] In this case, Mr Eaton argued that the Judge had not followed the approach suggested by this Court, and that the direction given by the Judge had led the jury to believe that the question relating to the circumstances as the accused saw them was relevant only to the “reasonable force” element, not to the question as to whether the accused was, or was not, acting in self defence.
[17] The formulation set out in Li was described by this Court as “preferable”, rather than compulsory. However, whatever formulation is followed by a trial judge in his or her summing up, it is in our view necessary to draw to the jury’s attention the need to assess both the self defence limb and the reasonable force limb of s48 in the light of the circumstances as the accused saw them.
[18] Mr Eaton said the Judge failed to do this. However, counsel for the Crown Ms Laracy, argued strongly that the summing up, when read as a whole, did, in fact, make it clear to the jury that both limbs needed to be assessed in the light of the circumstances as the accused saw them. Evaluation of this ground of appeal therefore requires a reasonably detailed analysis of what the Judge said in his summing up, and also the “issues sheet” which the Judge provided to the jury, and to which he cross-referred when giving the self defence direction. We propose to consider the criticisms of the summing up made by Mr Eaton individually, and then to consider the adequacy of the summing up when read in totality.
[19] In para [1] of the summing up, the Judge referred to the fact that the case was a single issue case, and described that issue as follows:
…the real issue being whether Craig Reyland, on this night, acted in self defence and used force which was reasonable in the circumstances as he believed them to be or, rather, has the Crown proved that it was not an occasion of self defence as I have just outlined it.
[20] Mr Eaton said that this introductory remark invited the jury to make an objective assessment of whether the appellant acted in self defence before turning to a subjective belief as to prevailing circumstances. We do not think there is anything in this point. All the Judge was doing was outlining the issue that needed to be determined, following, in broad terms, the format of s48 itself.
[21] There are further references to self defence in paras [21] and [25] of the summing up, but neither is exceptional.
[22] Before commencing his direction on self defence the Judge provided to the jury the issues sheet, which was in the following form:
To establish the charge the Crown must prove beyond reasonable doubt:
Wounding with Intent:
1. that the accused wounded [the complainant],
2.having at that time an intention to cause him grievous bodily harm (ie really serious injury) and
In relation to Self-Defence either:
3. that the accused did not use the knife in self defence, or
4.that in the circumstances, as the accused believed them to be, the force used was not reasonable.
Notes re Self Defence:
(a) Place yourselves in the accused’s situation on the night.
(b) What were the circumstances as he understood them to be?
(c) Did he in fact act in self defence?
(d)If so, do you assess the force used as reasonable, that is in proportion to any threat he was under?
[23] In paras [28]-[36], the Judge then took the jury through the issues sheet, providing them with directions based on that issues sheet as he went. For convenience we set out the text of paras [28]-[36]:
[28] If those two matters [points 1 and 2 on the issues sheet] are proved to the required standard that is proof of a wounding with intent. But as you will see I have said that in this trial the Crown must go two steps further and hence I have linked the second proposition with those that follow by an “and”. The Crown must go on and prove in relation to self defence one of two things, either that the accused did not use the knife in self defence. That would mean that the Crown would have satisfied you that in using the knife Mr Reyland was not in fact defending himself at all, but rather he was the aggressor, using it in a sinister way rather than for the purpose of defending himself.
[29] Or, alternatively, if you are left in doubt or consider it was a situation of self defence the Crown would have to establish the fourth proposition. That is that in the circumstances as the accused believed them to be at the time, the force which he used was not reasonable. So those are the two ways in which the Crown can disprove, or negative as we sometimes put it, self defence. Either by satisfying you that he was not in fact defending himself at all. That he was using the knife for aggressive purposes.
[30] Alternatively, if the Crown cannot satisfy you as to that and you do accept or are left in doubt as to whether it was used in self defence, then the Crown would have to satisfy you in order to negative this issue that in the circumstances as the accused believed them at the time to be, he nonetheless used force which was not reasonable.
[31] In order to help you I have put some notes about self defence at the bottom. The first point is that it is obviously essential for you to place yourself in the accused’s situation on this night. We do not assess an issue such as this in the calm of the courtroom. We seek rather to capture the atmosphere as it was at that time. Mr Reyland, affected by alcohol, on a street late at night, and in the situation that we have heard so much about. So that you then come to the second point – what do you accept were the circumstances as he understood them to be?
[32] This really gets down to the ultimate argument in this case and the essential difference in the submissions you have heard from Mr Ruane and Mr Bodle. Mr Ruane has said to you this was a fairly regular conventional fight on the street. There may have been a headlock at some point in time, but that when you looked at all of the evidence you could safely conclude that these were not blows with a knife struck by a man who was in a headlock and had no choice, because he was about to be rendered unconscious.
[33] Mr Bodle of course argued that that was not the case. That the circumstances as Mr Reyland saw them at the time were exactly that, that he was in a headlock, unconsciousness was imminent, it was life-threatening and he had no choice but to strike out with the knife. So those two arguments stress the extent to which you have got to reach a judgment, using your collective wisdom and judgment, as to what the circumstances in fact were.
[34] Then you come to the real questions. Did he act in self defence or has the Crown satisfied you that it was not an occasion of self defence at all. The fourth point, even if you are not brought to that view that he was not acting in self defence, was the force used reasonable and I have defined that as not in proportion to any threat he was under.
[35] The law does not on the one hand expect the accused to weigh what is appropriate to a nicety. You cannot expect that somebody in the agony of a fight should be able to assess to a fine degree what is appropriate. So it is a broad inquiry. There is no definition in our Crimes Act of what is reasonable and the reason for that is obvious when you think about it, and, this case is an example. What is reasonable force depends entirely upon the situation as the accused perceived it at the time. You cannot define in advance what measure or degree of retaliation is required. It would be impossible to do so and so we simply leave it as reasonable force and that means the judgment as to what was a reasonable response is for you as jurors. Do not be daunted by that. As I say it is a matter of exercising the judgment and wisdom you have acquired over the years, having listened to the evidence in this case after reaching a decision as to just what the true situation was when these blows were struck.
[36] That sheet, I suggest to you, also provides you with a method of approach. It is logical in this case to start with the four matters that the Crown must prove. Are you satisfied there was wounding? I shouldn’t have thought that a problem. Are you satisfied that Mr Reyland must have had a criminal intent, that is an intention to cause grievous bodily harm? Assuming you are satisfied of that you then go on and examine the further two major questions, was he acting in self defence or alternatively was he using force which was not reasonable even in the circumstances as he thought they were at the time? It is for the Crown to prove one or other of those propositions in order to disprove self defence.
[24] Mr Eaton said that both the issues sheet and para [28] of the summing up wrongly invited an objective assessment from the jury as to the initial question relating to self defence. He said the subjective element was introduced only in relation to the reasonable force element, which is point 4 of the issues sheet and paras [29] and [30] of the summing up. We accept that, if points 3 and 4 of the issues sheet and paras [28]‑[30] of the summing up were taken in isolation, there would be some validity to Mr Eaton’s criticism. But before reaching a view on the impression which the summing up had on the jury, it is necessary to go on to consider the specific direction on self defence contained in paras [30]-[36] of the summing up and the notes to the issues sheet which direct the jury as to the approach to be taken to the exercise of deciding the issues raised in points 3 and 4 of the issues sheet.
[25] In para [31] of the summing up and notes (a) and (b) of the issues sheet, the Judge put to the jury the first of the three questions referred to in the earlier authorities of this Court. The last sentence of para [31] posed the question in almost word for word format. In that respect the approach adopted by the Judge appears to accord with the preferred approach outlined in the earlier decisions of this Court to which reference has been made.
[26] Paras [32] and [33] then provided some commentary on the respective counsel’s submissions on this element. Defence counsel was recorded as having submitted that the circumstances as the appellant saw them were that he was in a headlock, unconsciousness was imminent, it was life threatening, and that he had no choice but to strike out with the knife. That appears to us to direct the jury’s attention to the need to consider the later directions in the light of the circumstances as the appellant saw them. In the last sentence of para [33] the Judge referred to the need for the jury to reach a judgment “as to what the circumstances in fact were”. Mr Eaton argued that this regressed to a direction that an objective assessment had to be made, but we do not think that criticism can be sustained given the context in which those words appear, where it is made clear to the jury that the appellant’s perception is the issue.
[27] In para [34] of the summing up the Judge then came to what he called the “real questions”, namely did the appellant act in self defence and, if so, was the force used reasonable. Ms Laracy argued that the directions in paras [31]-[34] followed the preferred approach of this Court because paras [31]-[33] ask the initial question about the circumstances as the appellant understood them to be, and para [34] asks the remaining two questions. She said it is clear that the Judge therefore asked the required questions and did so in the order required by the earlier decisions of this Court.
[28] Mr Eaton questioned the use of the term “real questions”, because he said that the real question was what the appellant understood the circumstances to be. We do not think there is anything in this – what the Judge appears to be referring to is the elements which the Crown is required to displace beyond reasonable doubt in order to justify the entry of a conviction. In that respect the address is following the format of the issues sheet, which, in our view, is not of itself exceptional.
[29] The same criticism is made of the reference to the “true situation” at the end of para [35], but our response to that criticism is also the same.
[30] Mr Eaton said that the phrasing of the questions in para [34], and the repetition of those questions in para [36], following the wording of points 3 and 4 of the issues sheet, all provided the jury with an impression that the initial question about s48, namely whether the appellant was acting in self defence, is not assessed in the light of the circumstances as the appellant thought they were at the time. We accept that the questions as posed in the earlier decisions of this Court contain explicit references to the circumstances as the appellant believed them to be in relation to both the issue of self defence and the issue of reasonable force. We accept that it would have been preferable if the formulation of the issues in point 3 of the issues sheet and in notes (c) and (d) of the issues sheet had followed that practice. A similar comment can be made about formulation of the questions in paras [34] and [36]. Mr Eaton’s criticism has greater force in relation to points 3 and 4 of the issues sheet and the commentary in para [36] because the reference to the circumstances as the appellant thought them to be at the time is included in the question relating to reasonable force but omitted in relation to the question referring to self defence. On the other hand notes (c) and (d) of the issues sheet and the questions posed in para [34] omit the references to the circumstances as the appellant understood them to be in both cases. The basis for this approach was presumably that both questions followed immediately after the direction to the jury that they must determine the circumstances as the appellant understood them to be and that there was therefore a clear implication that the subsequent questions had to be answered in the light of the jury’s conclusion on that question.
[31] Overall, we are satisfied that the direction, when read in the light of the issues sheet, particularly the notes to the issue sheet, provided adequate direction to the jury on the approach to be taken. The issue sheet and the direction would have been improved by explicit references to the circumstances as the appellant believed them to be each time the Judge referred to the self defence issue and the reasonable force issue, but we believe the overall impression left with the jury was that all issues relating to self defence had to be assessed in the light of the circumstances as the appellant perceived them to be. We believe that the directions and the notes to the issues sheet could not fairly be interpreted otherwise.
[32] In our view that impression would have been reinforced by the way the Judge summarised the defence contentions about the self defence issue. In para [52] of the summing up, the Judge recorded defence counsel’s argument that this was a case where the appellant appreciated the circumstances to be, or believed, that he was on the brink of being choked to unconsciousness. He recorded the contention that for the appellant it was a life threatening situation, that the appellant did everything not to have to use his knife, but having exhausted all possibilities, he had no choice. In our view that would have reinforced in the mind of the jury the need to assess all of the issues relating to self defence in the light of the circumstances as the appellant believed them to be.
[33] Overall we are satisfied that the direction on self defence adequately drew the jury’s attention to the appropriate approach to be taken to the issues which they were required to decide. Accordingly the first ground of appeal against conviction fails.
Misdirection regarding the appellant’s out of court statement
[34] The appellant elected not to give evidence. This meant that the jury heard of his account of what occurred on the night in question only through the answers he gave to Detective Sergeant Riach when she interviewed him on 26 August. Those answers were read out in the course of Detective Sergeant Riach’s evidence, and the transcript was provided to the jury.
[35] During the course of Detective Sergeant Riach’s evidence, but before she read out the questions and answers to the jury, the Judge raised with counsel the question as to whether the appellant’s statement was admissible. Having heard argument from counsel the Judge then issued a ruling. He determined that, although, on one view of it, the statement could be seen as largely self serving, it was admissible because it was not a statement prepared with the assistance of advisers, it was initiated by Detective Sergeant Riach, who was under no obligation to conduct the interview, it was introduced as part of the prosecution’s case at the depositions hearing and it was a mixed statement in the sense that it was partly inculpatory and partly exculpatory.
[36] The first reference to the appellant’s statement in the summing up appears in paras [12] and [13]. The Judge noted the prosecutor’s submission that the statement was in a different category from the other evidence heard by the jury, because it was not given on oath in the jury’s presence and the appellant was not subject to cross examination. The Judge said that the statement could be given such weight as the jury considered it deserved in those circumstances. Although Mr Eaton raised some concern about this direction, particularly the omission of any direction that the jury could have regard to other evidence in assessing whether matters raised in this statement were credible and reliable or not, we do not accept that there is any basis for that criticism. The direction was unexceptional.
[37] Later in the summing up the Judge outlined to the jury the sequence of events up to the time at which the statement was given. He pointed out that the incident occurred just after midnight on the morning of Friday 22 August, the appellant went to the police station on the morning of Saturday 23 August, some limited disclosure was made to the appellant’s counsel on Monday 25 August and the statement was taken on Tuesday 26 August. The position as outlined by the Judge was factually correct, and he did no more than inform the jury that the statement was taken three days after the event, rather than in the heat of the moment. Again we see nothing exceptional in that aspect of summing up.
[38] When he was summarising the Crown case and the defence case, the Judge returned to the issue of the statement. He recorded the prosecutor’s argument that the statement was “a carefully tailored account, by which I understood him to mean tailored to fit in with what Mr Reyland must have known by then from the material which had been disclosed”. He also recorded the prosecutor’s submission that the statement was a mixture of truths, half truths and lies.
[39] It was the first part of this that was the subject of Mr Eaton’s criticism. He pointed out that the limited disclosure which was made by the police to the appellant’s lawyer on Monday 25 August did not include a record of the statement made by the doctor who attended the complainant. Accordingly there was no way that the appellant could have known that the doctor had told the police about the complainant’s statement that he had the appellant in a headlock and intended to choke him to unconsciousness when the appellant made his statement to the police. He said this was crucial because the appellant’s statement coincided with the doctor’s report of the complainant’s statement on that important topic. He said that the Judge should have pointed out this weakness in the Crown’s contention as to the tailoring of the appellant’s statement.
[40] Before considering that criticism, it is necessary to consider the Judge’s summary of the defence case on this issue. At para [50], the Judge recorded defence counsel’s contention that the evidence of the doctor was important because it established that the complainant had endeavoured to choke the appellant to the point of unconsciousness. The Judge reported defence counsel as saying that, even though the complainant’s recall of the statement was hazy, the statement itself was significant because it was something which “fits in closely with the account given by the accused to the police on 26 August”. The Judge then noted that defence counsel had pointed out “that such disclosure as there had been by the police was not as to that piece of information”. He noted that the disclosure was only of a statement of witnesses at the scene, and that since the complainant had not remembered saying that he intended to choke the appellant to the point of unconsciousness, it was to be presumed that he had not mentioned it in the statement disclosed to the appellant’s lawyer.
[41] In our view the Judge’s summary of the prosecution’s and defence’s contentions about the “tailoring” of the statement fairly sums it up. This was a short trial and the addresses of the counsel would have been fresh in the minds of the jury when the Judge reminded them of the competing contentions on this issue. The summing up adequately drew the jury’s attention to the defence contention that the statement could not have been tailored to meet the evidence about the complainant’s intention to choke the appellant to unconsciousness. Accordingly this ground of appeal also fails.
[42] As we have rejected both grounds of appeal against conviction, that appeal is dismissed.
Appeal against sentence
[43] The Judge sentenced the appellant to imprisonment for a term of four and a half years. He undertook the sentencing exercise on the basis that the appellant had armed himself in the course of the struggle with the complainant but that his use of the knife in the particular circumstances was unreasonable or disproportionate. He noted the bartender’s evidence that the appellant had gone back into the bar to the toilet immediately before the incident with the complainant began, which could have indicated a more sinister view of events, namely that the appellant had armed himself before the fight with the complainant began. However he rejected that more sinister alternative version of offence, and both counsel in this Court accepted that it was appropriate for him to have done so.
[44] The Judge noted that the decision of this Court in R v Hereora [1986] 2 NZLR 164 identified sentencing bands for offences of this kind. He placed the appellant’s offending in the category of an impulsive act of violence involving a use of a weapon with intent to inflict serious injury, for which a sentence of three to five years was indicated in Hereora. The Judge expressed some concern whether Hereora remains an authoritative decision, given the changes made as a result of the passing of the Sentencing Act 2002, but proceeded on the basis that it was. The Judge also referred to an earlier decision of his own in R v Duncan HC TIM T021634 3 July 2003, where he had sentenced an offender to five and half years imprisonment for wounding with intent to cause grievous bodily harm in the course of a fight outside a bar. He said the Duncan case had some similarities to the present case.
[45] The Judge noted the seriousness of the offence and the very high risk that the knife wounds could have caused more serious injury or death. He noted the severe impact on the complainant. He said he did not regard the fact that the appellant was a member of the local chapter of a gang as greatly relevant because it had nothing to do with the incident. He took into account the fact that the appellant had a number of convictions but none were for anything like the current offence. However, he expressed concern that the appellant had a recent conviction for possession of a knife in a public place for which he was serving a sentence of community work that was incomplete at the time that this offending occurred.
[46] Mr Eaton said that the Judge was wrong to have drawn a parallel with the Duncan sentencing, because it was clear that in Duncan the offender had intended from the outset to use a weapon and that his defence at trial was an alibi which he later admitted was false. He said this was a stark contrast to the present case where the Judge had proceeded on the basis that the appellant had no intention of using the weapon at the beginning of the fight. We agree with Mr Eaton that the Duncan case is in a different category from the present case, but it seems to us that the Judge recognised this himself, as he recorded his acceptance of the defence submission that the present case was marginally less serious than that of Duncan and the sentence in the present case was one of four and half years, compared to the sentence of five and a half years in Duncan. In our view there is no significant disparity between the sentences imposed on Duncan and the appellant, and we did not understand Mr Eaton to suggest that there was.
[47] Mr Eaton said that the sentence was manifestly excessive because the Judge had given insufficient weight to the absence of premeditation, the appellant’s limited history of violence, the appellant’s expression of remorse and goodwill (this was a feature of the appellant’s statement on 26 August) and the fact that the appellant had voluntarily surrendered to the police. Mr Eaton accepted that the Judge had adopted the appropriate category from Hereora but said that the sentence was too high.
[48] On behalf of the Crown Ms Laracy submitted that the Judge had adopted a correct category from Hereora, had given appropriate recognition to all relevant factors and had set a sentence which fairly reflected the appellant’s culpability. She argued that a starting point of five years would have been justified given the serious injury suffered by the complainant and the aggravating factors identified by the Judge, particularly the fact that the appellant had been recently convicted for possession of a knife in a public place and assault, and was still serving the sentence of community work for that offending when the present offence occurred.
[49] We are satisfied that the sentence imposed by the Judge was within the available range. Under the principles set out in Hereora, a sentence of between three and five years was appropriate. In this case, it cannot be said that the Judge was wrong to set the sentence towards the upper limit of that range, given the facts identified by Crown counsel. We therefore dismiss the appeal against sentence also.
Solicitors:
Crown Law Office, Wellington
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