The Queen v Keoghan

[2007] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA377/06
[2007] NZCA 109

THE QUEEN

v

DANE ROBERT KEOGHAN

Hearing:26 March 2007

Court:Chambers, Chisholm and Gendall JJ

Counsel:R M Mansfield for Appellant

K B F Hastie for Crown

Judgment:30 March 2007     at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       The appellant was convicted by a jury of the crime of wounding with intent to cause grievous bodily harm after trial in the District Court at Hamilton on 12 July 2006.  He was sentenced to a term of four and a half years imprisonment and ordered to pay reparation in the sum of $4,000.  He appeals against the term of imprisonment.

Background

[2]       The charge arose out of a brawl which occurred in the early hours of the morning of 1 January 2005 at a camp ground on the Coromandel Peninsula.  The appellant and friends were camping there.  A drunken fracas developed between two large family groups at the camp ground.  The appellant’s brother was attacked and injured and the complainant’s father was attacked by a member of the appellant’s group.  A short time later, the complainant retired to his tent, when the fighting between the groups recommenced.  The complainant left his tent and, acting as a peacemaker, endeavoured to break up the fighting.  In the meantime the appellant had left the melee.  According to Judge Wolff’s assessment of the evidence, this was to retaliate as the appellant had left to arm himself with a knife.  The appellant returned to the scene and twice stabbed the complainant in the upper body.  The defences advanced at trial were that the stabbing had been inadvertent;  or was in defence of the appellant’s brother; or in defence of another member of the appellant’s group.  The jury’s verdict illustrates that such defences were rejected.

[3]       The injuries sustained by the complainant were life threatening.  There were stab wounds to the abdomen and to the lung and the complainant was taken by emergency helicopter to Auckland Hospital where he was treated and remained an in-patient for five days.

The sentencing approach

[4]       When imposing sentence Judge Wolff noted that the violence was fuelled by the extraordinary amount of alcohol consumed by the appellant.  The Judge observed that the appellant’s brother had been injured in the fracas.  He said that the appellant chose to retaliate and:

I choose the word retaliate because I want the word that falls between the argument advanced by your trial counsel of provocation and the alternative of retribution.  I see retaliation as falling somewhere between these two words.  It was retaliation, as I have already mentioned, fuelled by concern about what had happened to your brother, and alcohol.  It was not a case of self-defence in any possible configuration.

[5]       The Judge noted that but for the intervention and immediate medical assistance of the paramedic ambulance officer also on holiday at the camp site the complainant would most certainly have died.  The Judge recorded that the appellant was a young man with a bright future having no previous convictions.  He said that whilst the appellant contended that he felt remorse, the manner in which the trial was conducted by then defence counsel made it impossible to say that the appellant had any “concept of understanding or remorse”.

[6]       The Judge then referred to the tariff case of R v Taueki [2005] 3 NZLR 372 (CA) and went on to say:

The plain fact is that he is either at the top of one or at the bottom of the other of the Taueki (supra) categories.  There are aggravating features in this case, the fact that it was retaliation, and plainly it was because it occurred temporarily (that is in time) a significant time after your brother was injured.  It occurred in a physically separate place, requiring you to obtain a knife and then carry it approximately 50 metres to the fray, push another person who was attacking the complainant aside, and then stab him not once but twice.  To that extent it had a degree of preparation to it and I have already mentioned the severity by reference to the fact that but for the presence of the ambulance officer, he would have died.

[7]       The Judge noted as mitigating features the previous good record of the appellant and his agreement to make amends, together with some degree of empathy and remorse despite the way the trial was run.  The Judge concluded that:

A sentence of imprisonment that otherwise would have been a six year term of imprisonment will be imposed and you are sentenced to four and a half years imprisonment.

[8]       Whilst it was argued on behalf of the appellant that the Judge erred by not specifically stating his starting point, we think that, although not particularly clear, the Judge must have taken it as a term of six years imprisonment because of his statement that the sentence would “otherwise” have been that term.

Counsel’s submissions

[9]       On behalf of the appellant, Mr Mansfield submitted that the Judge erred in taking a starting point of six years imprisonment, it being too high on the facts of this case.  He submitted the case fell into category 1 in Taueki with a starting point of between four and five years imprisonment and, after allowance for the mitigating features a final sentence of between two and a half and three and a half years imprisonment was appropriate.

Discussion

[10]     We are not persuaded that a starting point of six years imprisonment was inappropriate.  The appellant’s actions incorporated at least two of the aggravating factors mentioned at [31] in Taueki, namely:

·     serious injuries which were potentially fatal were inflicted;

·     the use of a lethal weapon in striking two blows to the abdomen and upper body of the complainant.

Arguably, a third factor (premeditation) was also present. 

[11]     The Judge was entitled to reject issues of provocation and excessive self-defence as being matters capable of reducing the seriousness of this offending.  In terms of culpability it fell squarely within category 2 of Taueki given the aggravating features outlined.  That category normally carries a starting point between five and eight years imprisonment.  

[12]     This appeal is concerned only with whether a starting point of six years imprisonment was appropriate.   For the reasons above we are satisfied that a starting point of six years was within the range open to the Judge.  A discount of 25% for mitigating features was appropriate.  The sentence finally imposed was not manifestly excessive.

Result

[13]     The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington