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.

____________________________________________________________________

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 to get to his feet.  Mr McEwen then punched him a further 15 times to the stomach and abdomen area, leaving him slouching over the back of the car.  Mr McEwen then punched Mr Gardner a further six times to the head, knocking him to the ground, where he was kicked several more times by Mr McEwen lifting his boot and using the back of his heel.

[8]        Mr Gardner suffered swelling and bruising to his head and face, grazing on his face, forehead, right ear and shoulders and elbows.  He was also left with a fluid buildup in his ear which required removal.  Following treatment, he was off work for two days and unable to drive for three days.

[9]        The summary of facts recorded that Mr McEwen admitted punching Mr Gardner but said that Mr Gardner had punched him first.  This drew on Mr McEwen’s evidence at trial.  In support of a defence of self-defence, he said that immediately after the altercation between Ms Hutchins and him, he heard a voice say, “I’m gonna kill you” and was punched in the face by Mr Gardner.  He said he responded by punching Mr Gardner.  There was an exchange of blows which ended with Mr Gardner dragging him to the ground.  He denied kicking or stomping on Mr Gardner while he was on the ground.

Sentencing

[10]       Sentencing was adjourned on two occasions because of delays in furnishing a full pre-sentence report.  The Judge presiding at a callover to arrange a further sentencing date, suggested that further delays could be avoided if a local Judge could sentence the appellant.  This was put forward on the basis that Judge MacDonald, who is based at Whangarei, was agreeable.  It appears that he was, as were counsel for the Crown and the defence.

[11]       The statement of facts was prepared by the Crown and agreed to by Mr McEwen’s counsel at trial and sentence, Mr N Deobhakta.  Mr Allan said he was instructed by Mr McEwen that he was not consulted about the statement of facts but there is no evidence to support this.

[12]       In sentencing, Judge Tompkins adopted a starting point of 18 months’ imprisonment.  He reduced the sentence by six months to take into account the fact that, at 23 years of age, Mr McEwen was a first offender who had undertaken an anger management programme while on remand.  He rejected a plea for a sentence of home detention, observing:

This was deliberate offending and offending of a serious kind in a public place against an, effectively, innocent victim.  The motivation which caused the prisoner to offend can, in my view, only properly be addressed by the Court by a fulltime custodial sentence.

Appeal

[13]       While maintaining that, in the circumstances, sentence should have been passed by the trial Judge on the basis of his evaluation of the evidence, Mr Allan acknowledged that the agreed statement of facts is unlikely to have differed materially from the view Judge MacDonald would have taken of the facts.  That is because the case was presented at trial on the basis that one or other of the principal protagonists was fabricating his evidence and, in rejecting self-defence, the jury must have accepted that Mr Gardner’s account was correct.

[14]       Mr Allan’s key submission was that the sentence was excessive and inappropriate, having regard to the gravity of the offending as it appears when the facts are considered in context.  He placed particular weight on the relatively minor nature of the injuries suffered by Mr Gardner.  He said they cannot be reconciled with Mr Gardner’s evidence of multiple forceful blows and kicks.

Decision

[15]       Although it is permissible for a Judge, other than the trial Judge, to sentence a prisoner – see s 371(7) Crimes Act 1961 – it is a course that should be avoided if at all possible.  Some of the problems that may ensue are demonstrated in this case.

[16]       We have considered the medical evidence and examined the photographs of the injuries.  They confirm that Mr Gardner’s injuries were relatively minor and indicate, as Ms Jelas suggested, that his perception of the number and severity of the blows and kicks he received may well have been magnified by his emotional state at the time.  While he was the victim of an unprovoked and sustained attack, his injuries suggest that none of the blows or kicks could have been administered with significant force and that the number of times he was struck would appear to have been overstated in the summary of facts.

[17]       In R v Harris [2008] NZCA 528, this Court suggested guidelines in cases of injuring with intent to injure. After reiterating previous warnings against shrinking the bands in R v Taueki [2005] 3 NZLR 372 (CA), when sentencing for such offending the Court said:

[10]       An offence of injuring with intent to injure involves establishing both an intent to cause an injury and an actual injury resulting. At least in general terms, the mens rea for this offence will coincide with the actus reus. Cases where there is a broad correspondence between the actual injury and what was intended (or the level and nature of the violence inflicted) can fairly be sentenced primarily by reference to the seriousness of the injury suffered, an approach which we think is broadly consistent with Taueki. On this basis, we envisage bands and starting point sentences (ie before allowance for personal aggravating and mitigating factors) as follows:

Band one: where there is little injury and few aggravating features and where the sentencing judge considers the culpability to be at a level which might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate: Taueki at [27];

Band two: where the injuries are moderate, sentences of up to two years’ imprisonment can be justified;

Band three: for serious injury, sentences from 18 months up to the maximum of five years can be justified (subject to complying with s 8(c)(d) of the Sentencing Act 2002).

[11]       Beyond the extent of the injury, the appropriate starting sentence will depend upon the effect that any additional aggravating and mitigating features have on the seriousness of the conduct and the criminality involved. Such features are identified in Taueki and ss 8 and 9 of the Sentencing Act.

[18]       In his sentencing notes, Judge Tompkins recorded a Crown submission that the level of violence involved, the vulnerability of the victim and the extent of harm should result in a final starting point towards the upper level of band three in Harris.  Judge Tompkins neither adopted nor rejected the submission though, perhaps with the distinctions drawn in Harris in mind, he accepted a defence submission that Mr Gardner’s injuries could be described as moderate.  His starting point of 18 months is consistent with an assessment that the offending came within band two.

[19]       We would not differ from Judge Tompkins’s view that the injuries could fairly be characterised as moderate and that the offending fell within band two.  However, in adopting a starting point towards the upper end of band two, and ultimately imposing a sentence of 12 months’ imprisonment, we think he may have been overly influenced by the way in which the incident was described and had insufficient regard for the injuries actually sustained.

[20]       On our analysis of the facts, a lower starting point would have been appropriate and alternatives to a prison sentence could properly have been explored.  The sentence imposed was not the least restrictive outcome appropriate in the circumstances as required by s 8(g) of the Sentencing Act 2002.

[21]       Having regard to mitigating factors, particularly that Mr McEwen is a first offender, we consider the sentence he has already served, effectively approaching seven months, is adequate punishment, if associated with a requirement that he undertake appropriate anger management counselling.

Result

[22]       The appeal is allowed.  The sentence of 12 months’ imprisonment on the charge of injuring with intent to injure is quashed.  In its place a sentence of seven months’ imprisonment is imposed.  Mr McEwen’s release conditions are to include a requirement that he undertake such anger management counselling as directed by a probation officer.

Solicitors:           

Crown Law Office, Wellington