The Queen v Matthews

[2007] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND

CA136/06

[2007] NZCA 53

THE QUEEN

v

RAEWYN ROSITA MATTHEWS

Hearing:13 February 2007

Court:Arnold, Panckhurst and Priestley JJ

Counsel:R M Mansfield for the Appellant

M T Davies for Crown

Judgment:8 March 2007 at 3 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

B        The appeal against sentence is allowed.

CThe sentence of three years imprisonment is quashed and a sentence of two years four months is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Introduction

[1]       The appellant was charged indictably under s 188(2) of the Crimes Act 1961 with wounding with intent to injure.  This charge carries a maximum penalty of seven years imprisonment.

[2]       At the conclusion of a jury trial in the Auckland District Court the appellant was convicted.  On 13 April 2006 Judge L H Moore sentenced her to a term of three years imprisonment.

[3]       The appeal challenges both conviction and sentence.

Background

[4]       The alleged offending took place at night on 28 October 2004.  The appellant was working as a prostitute.  The victim was a client.

[5]       After some initial negotiations, the exact nature of which was subject to conflicting evidence, the appellant entered the victim’s motor vehicle and was driven to a secluded area in Grey Lynn.  Shortly after their arrival the couple could not agree on the next step.  The victim’s evidence was that he no longer wished to proceed with the transaction.  The appellant, who gave evidence at her trial, maintained the disagreement was over such issues as price and whether the victim should wear a condom.

[6]       Against that background the victim was assaulted by the complainant.  One of his teeth was chipped.  Additionally, and more seriously, the appellant struck the victim around four times with a sharp object.  In addition to a cut on his right cheek the victim sustained four puncture wounds high on his back around the left shoulder. The victim bled profusely.  He required medical attention. 

[7]       Without in any way minimising the victim’s injuries and distress, the puncture wounds, although undoubtedly alarming, were not life threatening.

[8]       The wounds inflicted were clearly inflicted by a sharp object.  There is no satisfactory evidence as to what that object was although, at trial, the appellant asserted that she had used a small pair of tweezers.  When arrested she possessed a screwdriver.

Discussion

Conviction Appeal

[9]       Counsel attacked the Judge’s summing up on two broad grounds.  The first focused on the adequacy of the Judge’s directions to the jury on the issue of self‑defence which was run as a defence at trial.  The second submission related to various comments made in the course of the Judge’s summing up which counsel considered undermined the appellant’s defence.

[10]     Although counsel conceded there were no errors in the Judge’s self-defence direction (which adequately and correctly covered the elements of the accused’s belief, whether the accused was acting to defend herself from some actual or threatened harm, and the reasonableness of the force used), the submission was that the direction should have been augmented by an additional explanation about the use of pre-emptive force. 

[11]     Counsel referred to R v Wang [1990] 2 NZLR 529. That case involved an appeal from a manslaughter conviction where the provocation defence had been successfully run. The victim, having threatened to kill his wife, fell into a drunken sleep whereupon the wife stabbed and killed him. The appeal focused on whether the decision of the trial Judge not to allow self-defence to go to the jury was correct. This Court upheld that decision.

[12]     Certainly there are dicta in R v Wang relating to pre-emptive strikes. The Court (at 535) accepted that in the context of self-defence, force included not only the use of physical power but the threat of its use.

[13]     But there is no authority for the proposition that a self-defence direction must contain some specific treatment of a pre-emptive strike.  In fact there is authority for the contrary proposition.   In R v Hackell CA131/02 10 October 2002 this Court said:

[18]     That said, no authority has been cited to us which suggests that there is a positive obligation on a Judge to raise, in terms, the issue of a pre-emptive strike.  The argument here appears analogous to that put forward in R v Powell (CA 202/01, 25 October 2001) where it was suggested that the Judge in that case, in his self defence direction, should have invited the jury to consider how imminent was the apparent peril, how significant was the feared harm, and what alternative did the appellant have (those being considerations relevant to a defensible pre-emptive strike).  In that case R v Wang was cited as authority by counsel for the relevance of those issues.  However, this court held:

We think the jury would well have understood from the direction we have quoted that the circumstances giving rise to the response, in the agony of the moment, involved considerations including those said to have been omitted.  The decision in Wang was focused on the assessment by a Judge whether self defence should be put to the jury [at all] rather than on directions to be given.  It is not authority for a proposition that omission of the specific considerations amounts to misdirection.

[19]     In our view, the same reasoning applies in this instance.  The Judge in this case, whilst not expressly referring to a pre-emptive strike, allowed for this possibility (and indeed covered all the relevant bases) when he stated:

Was it a reasonable response to the total circumstances that he thought was confronting him, namely that the jab, as light as it was, was the beginning of a fight and that more was coming.

[14]     Our view is thus that the Judge cannot be faulted for omitting any specific reference to a pre-emptive strike.  His summing up included:

On the issue of self-defence there are three factors to be dealt with in order.  The first is, you have got to decide what the accused believed – what was in their mind as to what the circumstances were at the time.  So you consider that from their point of view.  What did she believe was happening?  What did she think was the nature of the attack or threat with which she was faced? And you assess that by taking into account all the evidence.  Then, looking at what the accused believed was happening, was what she did acting in defence from the harm that was occurring or threatened.  So again it has to be considered from her point of view.  Was she using force to defend herself against harm that was occurring, or harm that she believed was about to occur?  And again you look at all the evidence.

So if you are satisfied that her reaction was not an exercise in self-protection but an exercise in attacking somebody because they had upset her, for example, that is not self-defence.  Retaliation isn’t self-defence.  Payback isn’t self-defence. It is implicit in the concept of self-defence that the accused acted to meet what they believed to be an existing threat, so revenge and retribution are way outside the scope of this issue.  If you think it’s at least a reasonable possibility that she believed she was in danger of bodily harm  and that what she was doing she intended to do in self-defence against that danger, then you need to go to the third step which is this:  was the force that she used reasonable given what she believed was happening at the time.    [Emphasis added]

Although the Judge did not use the words “pre-emptive strike” the concept is inherent in his directions (as emphasised) and overall.       

[15]     This portion of the direction, in the light of the evidence the jury heard from the appellant who stated she was fearful of the victim’s intentions, in our judgment is adequate.

[16]     Counsel’s next submission under this head was that, even if the self-defence direction was adequate, the Judge “crossed the line” by making comments in relation to the evidence which effectively negatived a finding of self defence.  We note the trial Judge gave a standard direction that questions of fact were for the jury alone.

[17]     We have read the Judge’s summing up with some care.  The Judge referred to the console visible in the photographs of what appears to be an unremarkable vehicle.  He referred to the fact that penetrating wounds had gone through the victim’s jacket and shirt and asked rhetorically whether this told the jury something about the force and the weapon used.

[18]     In summarising the Crown’s case the Judge paraphrased the appellant’s evidence by saying:

“I started whacking him because I wasn’t sure what he was going to do to me”.  That, on any view of the facts, starts you down a path which excludes self-defence. 

[19]     In summarising the defence case the Judge spent some time on defence counsel’s closing.  He referred to the darkened and isolated area where the vehicle was parked, the alleged locking of the car door by the victim, and counsel’s submission that self-preservation was the appellant’s “dominant intention”.

[20]     We have given careful consideration to Mr Mansfield’s submissions.  We do not consider that the Judge’s summing up and in particular his references to the evidence went too far.  The issue of self defence was adequately left to the jury’s determination.

[21]      Accordingly the appeal against conviction must be dismissed.

Appeal Against Sentence

[22]     The Judge’s sentencing notes refer to a number of matters. The Judge clearly disbelieved much of the appellant’s evidence at trial.  He commented that the jury’s verdict was no surprise because her evidence “was completely over the top”, containing lies.

[23]     The Judge chose as his starting point a band of two years nine months to three years.  He considered that there was an “ample basis” to increase that start point significantly because of the appellant’s criminal history.

[24]     The criminal history was not impressive.  The appellant, aged 34 at the time of trial, has a number of convictions for violent offending, including two assaults with intent in 1998 which led to her imprisonment, two common assaults, and one charge of assault with a blunt instrument. 

[25]     The Judge referred to the pre-sentence report which canvassed the appellant’s personal and psychiatric history.  In the main, community based sentences, counselling, and follow-up educational programmes whilst the appellant was on parole, had been completed satisfactorily.  The risk of the appellant re-offending was assessed as high, based on her previous criminal history.  However, there was some hint that she was positively motivated to change.

[26]     The Judge then observed that he considered the culpability of prostitutes who beat up their clients was equivalent to the culpability of clients who beat up prostitutes.  Finally the Judge stated that he “could not see any way out of a sentence of three years” which he then imposed as both the starting point and final sentence.

[27]     Mr Mansfield submitted that the sentence was manifestly excessive.  The Judge failed properly to take into account the circumstances surrounding the offending, particularly the appellant’s vulnerability in the presence of an arguing customer in a secluded place.  Insufficient credit had been given for the appellant’s willingness to seek counselling for herself and her children and to undergo an anger management programme.  In counsel’s submission an appropriate final sentence was between two and two and a half years.

[28]     The respondent submitted that this Court’s guidelines in R v Taueki [2005] 3 NZLR 372 applied, where the Court, although primarily dealing with sentencing bands for offences under s 188(1), indicated that the guidelines could be applied by analogy to s 191(1) and other offences involving the infliction of serious violence. The lowest band (category one) in terms of Taueki is three to six years.  Mr Davis accepted in his submissions that a downward adjustment for s 188(2) offending was appropriate because the maximum sentence was seven years imprisonment, half of the maximum prescribed for s 188(1) offending.  Although the Judge did not specifically mention R v Taueki it is clear from the sentencing notes that he is aware of the distinction between the two s 188 penalties.

[29]     In counsel’s submission, using the Taueki classifications, the appropriate adjusted start point would be two and a half to three years.  There was no suggestion the Judge had ignored the contents of the pre-sentence report and the mitigating arguments made on the appellant’s behalf.

[30]     The wounds inflicted by the appellant were not trivial.  The decision whether to lay a charge under s 188(2) or the somewhat lesser charge of assault with intent to injure under s 193 carrying a three year maximum, was solely a matter of prosecutorial discretion.  The appellant’s culpability and the circumstances could properly be reflected in a charge under either provision.  But ultimately the specified crime is not the major factor.  Rather it is the culpability of the offending.   Significantly the appellant has prior convictions under s 193.

[31]     Although the three year start point adopted by the Judge was arguably pitched too high, even allowing for the aggravating features of the appellant, it is apparent from the Judge’s remarks that he has given no credit for the mitigating factors identified by counsel.  Those mitigating factors were the vulnerability of the appellant when an argument developed in the car, the redeeming features mentioned in the pre-sentence report, and counsel’s submission suggesting that, despite her history, the appellant was taking steps to address her propensity for violence. 

[32]     There is little point in this Court going through the sentencing exercise anew.  Regardless of whether we adopted a lower start point and took the view that aggravating and mitigating factors were in equipoise, or adopted the Judge’s start point and factored in the mitigating factors to which we have referred, we consider, by either route, the three year sentence is manifestly excessive. 

[33]     Accordingly the appeal is allowed.

Result

[34]     The appeal against conviction is dismissed.

[35]     The appeal against sentence is allowed.

[36]     The sentence of imprisonment imposed on the appellant of three years is quashed.  A sentence of two years four months imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington