The Queen v McEwen - [2009] NZCA 533

IN THE COURT OF APPEAL OF NEW ZEALAND
CA472/2009
[2009] NZCA 533
THE QUEEN
v
MATTHEW ROY MCEWEN
Hearing:9 November 2009

Court:Robertson, Rodney Hansen and Courtney JJ
Counsel:D J Allan for Appellant

J M Jelas for Crown

Judgment:12 November 2009 at 3 p.m.

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.
B The appeal against sentence is allowed.
CThe sentence of 12 months’ imprisonment is quashed and a sentence of seven months’ imprisonment substituted, subject to release conditions which include a requirement that the appellant undertake such anger management counselling as directed by a probation officer.

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REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
[1]        Following trial in the Hamilton District Court before Judge DJ MacDonald and a jury, the appellant, Mr McEwen, was found guilty of charges of injuring with intent to injure and assaulting a female. There were difficulties arranging sentence before the trial Judge. Instead, based on a statement of facts agreed by counsel, Mr McEwen was sentenced by Judge Tompkins to 12 months’ imprisonment on the charge of injuring with intent to injure and a concurrent sentence of two months’ imprisonment on the charge of assaulting a female.
[2]        Mr McEwen appeals against sentence on the grounds that:
(a)          It was wrong for a Judge other than the trial Judge to sentence him;
(b)It was wrong for sentencing to proceed based on a summary of facts agreed to by counsel;
(c)The sentence was wrong in principle and/or manifestly excessive.

[3]        An appeal against conviction was abandoned.
The facts
[4]        The agreed summary of facts was based on the evidence given at trial of the victim of the charge of injuring with intent, David Gardner. The victim of the assault on a female, Cathleen Hutchins, did not give evidence. Mr McEwen and Ms Hutchins had been in a relationship for several years. After it came to an end a few months earlier Ms Hutchins and Mr Gardner began seeing one another.
[5]        On 21 November 2007, Mr McEwen and Ms Hutchins were at a service station in Hamilton. Mr Gardner drove to the service station, at Ms Hutchins’ request, to pick her up. As he approached, he could see Ms Hutchins and Mr McEwen arguing. He saw Ms Hutchins slap Mr McEwen, who responded by punching her in the right cheek. The punch, although forceful, was not enough to cause Ms Hutchins to fall over.
[6]        Mr McEwen then ran over to Mr Gardner’s car, opened the driver’s door and dragged Mr Gardner from the car. He punched him hard twice in the abdomen. The second punch caused Mr Gardner to fall to the ground. Mr McEwen then began kicking Mr Gardner in the head, using a stomping action. Mr Gardner’s head was forced against cobblestones on the ground and the back wheel of his car.
[7]        At this stage Ms Hutchins put her arms around Mr McEwen from behind in an attempt to restrain him. Mr Gardner was then able…

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 The Queen v McEwen

Details

AGLC: The Queen v McEwen [2009] NZCA 533
Case: [2009] NZCA 533
Decision Date: 12 November 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Matthew Roy McEwen was heard, where the appellant, Mr McEwen, was convicted of injuring with intent to injure and assaulting a female. The appeal was against the sentence imposed by Judge Tompkins, while the appeal against conviction was abandoned. The legal issues before the court were whether it was appropriate for a different judge to sentence the appellant, whether sentencing should proceed based on a summary of facts agreed upon by counsel, and if the sentence was wrong in principle and/or manifestly excessive. The court found that while it is permissible for a judge other than the trial judge to sentence a prisoner, it is a course that should be avoided if at all possible. The court also found that the sentence imposed was not the least restrictive outcome appropriate in the circumstances, as required by section 8(g) of the Sentencing Act 2002. The appeal against sentence was allowed, and the sentence of 12 months' imprisonment was quashed and substituted with a sentence of seven months' imprisonment, subject to release conditions which include a requirement that the appellant undertake such anger management counselling as directed by a probation officer.

Orders