The Queen v Service

[2008] NZCA 314

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/2008
[2008] NZCA 314

THE QUEEN

v

DANIEL DAVID RAYMOND SERVICE

Hearing:29 July 2008

Court:Ellen France, Gendall and Miller JJ

Counsel:H T Young for Appellant

D R La Hood and V Brewer for Crown

Judgment:22 August 2008 at 10.30 am 

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed. 

BThe appeal against sentence is allowed.

CThe concurrent sentences of seven years imprisonment with a minimum period of imprisonment of four years are quashed.  A sentence of six years imprisonment with a minimum period of imprisonment of three years is substituted on the charge of wounding with intent to cause grievous bodily harm.  A concurrent sentence of three years imprisonment is substituted on the charge of intentional damage.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant, Daniel Service, was convicted after trial of wounding with intent to cause grievous bodily harm and of intentional damage.  He was acquitted of assaulting a second complainant using a chair as a weapon.  The appellant was sentenced by the trial Judge, Judge Phillips, to a term of imprisonment of seven years with a minimum period of imprisonment of four years: DC INV CRI‑2007-025-000822 15 April 2008.  He appeals against conviction and sentence.

[2]       The conviction appeal rests on the appellant’s argument that the summing up was unfair.  In terms of the sentence appeal, the appellant challenges the starting point adopted, the discount given for mitigating factors particularly in comparison to that given to his co-offender (the appellant’s brother), and the imposition of a minimum period of imprisonment.

Factual background

[3]       The factual background is set out in the Crown submissions which we draw on for the summary which follows.

[4]       On 24 February 2007, the appellant who was then aged 22 and his younger brother, Mark Service, and other young people went to a party at a house in Invercargill.  They were uninvited and the 19-year-old host of the party, Benjamin Tattersfield, asked the group to leave.  The appellant and his brother took exception to the request to leave and the Crown alleged that they attacked Benjamin Tattersfield.  This gave rise to the assault with a weapon charge against the appellant on which he was acquitted.  Mark Service was knocked to the ground in the course of this visit and the appellant and his group then left the address.  As they were leaving, the appellant threw a pot plant through a large plate-glass window. 

[5]       There was evidence at trial that the appellant was angry and upset at what had occurred.  Then, about an hour later, the appellant and his brother went back to the address in a car driven by a female friend and accompanied by three other young women.  The appellant took a metal spirit-level with him. 

[6]       By this time Benjamin Tattersfield’s father, Richard, had arrived home.  The appellant and his brother went from their car to the front door of the house.  The appellant had the spirit-level in his hand.  As they went to go into the house, Richard Tattersfield stopped them and told them to leave.  The appellant then swung the spirit-level hitting Richard Tattersfield on his head causing a 100 millimetre cut on his forehead, deep enough to reach the bone.  He swung a second time but Mr Tattersfield deflected the blow and the deflection caused injuries to his hand.

[7]       Richard Tattersfield then took one of his children’s softball bats and forced the appellant out of the house.  As the appellant and his brother left, two large plate-glass windows were smashed, a window of a van in the driveway was broken and a wheelie bin thrown through the broken window before the two left.  There was evidence of the two brothers laughing in the car as it left the scene and of one of the two saying things like, “[I] smashed him over good”.

[8]       Richard Tattersfield gave evidence identifying the appellant as his assailant.  The Crown also called evidence from others in the appellant’s car.  The appellant did not seriously challenge the charge of intentional damage.  In terms of the more serious charge of wounding with intent to cause grevious bodily harm, the two brothers (who were tried together) essentially each ran defences in which they said the other was responsible for the attack on Richard Tattersfield.

[9]       Mark Service was found guilty of assault with intent to injure Benjamin Tattersfield in relation to the group’s first visit to the house and was also found guilty as a party to a charge of wounding with intent to injure.   He was acquitted of the more serious wounding charge.

Conviction appeal

[10]     The appellant submits that overall the tenor of the summing up was so unbalanced that a miscarriage of justice has arisen. 

The relevant passages in the summing up

[11]     In developing this submission, the appellant focuses on comments the Judge made in the summing up in relation to the defence case. 

[12]     The first comment arose in the context of a discussion of the defence case on the charge on which the appellant was acquitted.  In this context, the Judge recorded the submission of counsel for the appellant that the issue was one of identification.  The summing up continued:

In relation to Mr Keen, Daniel Service was not wearing a bandanna; there was plenty of evidence pointing away from Daniel Service; [Mr] Grennell was over six foot, more Caucasian in colour than a Polynesian or Maori; there was no evidence (I just make the point to you there was no evidence here) that these people were inside the house either [Mr] Grennell or [Mr] Hyde.  But Mr Young submitted that you have [Mr] Grennell, you have the [Mr] Hyde description.  You have Katherine Affleck’s evidence who says the attacker was Daniel Service.  He says she is one in the attacking group but you cannot be sure on her evidence, said Mr Young.  Glen Shirley came in after the incident, he had only seen a small snapshot.  In these attacking groups you have got Benjamin Tattersfield, Daniel Turner (who did not see the chair), Rohan Mahon (who did not see the chair) and all of that evidence is conflicting.  Katherine Affleck’s evidence is conflicting as to the number of attackers she saw.  Mr Young said by the time all this [is] going down there could have been five from the car involved in the house by the time of the chair evidence. (I looked and I have to say I could not see evidence of that, Mr Foreman, Ladies and Gentleman, it is a matter, of course, for you).

[13]     In that context, the appellant notes also that the Judge warned the jury twice in summing up to take into account the context, ie a melee, when considering the identification evidence relating to Benjamin Tattersfield but did not repeat that warning in relation to Richard Tattersfield’s evidence.

[14]     The second criticism relates to the passage in the summing up summarising the defence case on intention.  We need first to set out the summary of counsel’s submission which the Judge put in the following terms:

Mr Young spent some time with you going through the intent as to whether it was grievous bodily harm or intent to injure.  Mr Young accepted there was a wounding.  He said you needed to look that there was no broken skull, no broken fingers and no putting him on a ventilator; there were only two blows; the weapon was a spirit level, not a knife or an axe; a spirit level does not have an inherent alarming quality and what was said in the car shows that it was not preplanned and that it [was an] ad hoc attack.  He accepts that there was a discussion in the car indicating that there was a propensity of violence but that is a party issue, says Mr Young, involving Mark Service.  There could not be an anticipation of really serious harm if there were four females with them.

[15]     The criticism made by the appellant relates to the passage from the summing up which follows:

(I have to say to you that I query all that.  It is a matter entirely for you to decide that there is no need for really serious harm to include a broken skull or being placed on a ventilator or for an axe or a knife to be used for only two blows.  It is a matter for you to decide whether here there was an intent to cause really serious harm.  I can say to you that the spirit level being swung to a person’s head might very well be found by you to be an inherently alarming thing but that is a matter for you).

[16]     The third aspect arises from the Judge’s comments at the end of his summary of the defence case in relation to who had struck Richard Tattersfield.  The relevant passage is as follows:

[Mr Young] says you could not be sure that in fact this happened where Mr Tattersfield said it happened, that it could have happened out in the dark and the person who did it was Mark Service.  (I just ask that you note there that Mr Tattersfield was never asked if he had been on the ground outside.  In reality here you need to look at all of the evidence, consider all of the evidence, not just little bits of it).

Discussion

[17]     On the authorities, the Judge was entitled to comment on the evidence so long as it was made plain to the jury that matters of fact were for the jury and the overall effect was not an unfair or unbalanced summing up: R v Keremete CA247/03 23 October 2003 at [18] and [19]; and R v Afele CA330/02 10 December 2002 at [23] – [24] and [27].

[18]     We are satisfied that the summing up has not been such as to give rise to a miscarriage.  The defence case was, as Mr Young properly accepted, put before the jury and in our opinion the overall effect was not an unbalanced one.  In this context, we emphasise the following factors.

[19]     First, the Judge did make it plain on more than one occasion that matters of fact were for the jury to determine.  Plainly, given the acquittal on the first count, the jury understood their role.

[20]     Second, on individual analysis, the comments which the appellant criticises are not inaccurate although we accept that on occasions the effect could be seen to be providing counter-arguments to the defence case.

[21]     In terms of the complaint relating to the discussion of the first charge, we accept the Crown’s submission that the Judge meant that there was no direct evidence of those named people being inside the house.  The high point, as Mr Young accepted, was that there might have been three attackers.  The Crown is also right that there was no need to repeat the warning about the identification evidence when it was plain as a matter of common sense that the same thing would apply to the identification evidence of Richard Tattersfield.  In any event, the Judge also gave a general warning in orthodox terms about the need for caution in assessing the identification evidence.  The points made by the defence as illustrative of the difficulties with this evidence, for example poor lighting, were discussed in this context.

[22]     The comment in relation to the defence case on intent was no doubt intended to respond to the suggestion that it was somehow necessary for the complainant to have suffered a broken skull or have been put on a ventilator.  That suggestion was inaccurate and the Judge could not be expected to leave the matter with the jury on an incorrect basis.  The observation that Richard Tattersfield was never asked whether he was outside was also an accurate one.  Further, the repetition of the orthodox direction that the jury was required to consider all the evidence, albeit at what counsel says was a strategic point in terms of the summary of the defence case, is not such as to amount to unfairness.

[23]     Finally, the effect of the comments has to be considered against the fact that the case against the appellant was a strong one. 

[24]     There was a second argument advanced in the appellant’s written submissions on the conviction appeal which related to the Judge’s direction on parties.  The submission was made that the Judge should have directed the jury that if they could not be sure who the principal offender was, but were sure that both of the accused were at least parties then they should convict both accused.  On this aspect, Mr Young accepted the Crown submission that such a direction would not have been correct given the way the case was run.  The Crown was prepared to accept the acquittal of both accused if the Crown theory, that the appellant was the principal and his brother the party, was rejected by the jury and the Judge directed the jury in accordance with that approach.  As Mr Young acknowledged, his argument now seeks essentially to have a “bob each way” and for this reason, this point was not pursued. 

[25]     We therefore dismiss the conviction appeal.

Sentence appeal

The sentencing remarks

[26]     The Judge in sentencing noted the information before him indicated that the appellant had a problem with alcohol and violence and showed little insight into this issue.  Judge Phillips also recorded that the appellant is a qualified tradesman whose only previous convictions had been the subject of fines.

[27]     The Judge saw the appellant’s offending as falling within the middle to top of band two in R v Taueki [2005] 3 NZLR 372 (CA). In reaching that view, Judge Phillips identified the following factors:

(a)       premeditation;

(b)serious injury (as outlined in the Victim Impact Report);

(c)use of a weapon (spirit-level);

(d)vulnerable victim (the vulnerability arising because the victim was unarmed in the doorway of his home and suffered an unprovoked attack with a weapon); and

(e)entry into a home.

[28]     The Judge then indicated (at [9]) that, having read all of the letters and reports and having seen the appellant over the course of the trial, his view was that the appellant “should go to prison for seven and a half years”.  The Judge went on to say that there were no mitigating factors but, nonetheless, in imposing a final sentence of seven years imprisonment does appear to have given some weight to the references filed in support of the appellant, to his work background and to the fact that he would be going to prison for a lengthy time as, effectively, a first offender.

[29]     A minimum period of imprisonment was imposed to reflect the deliberate return and entry to the victim’s home with a dangerous weapon.

[30]     In sentencing Mark Service, Judge Phillips noted that he was 18 years old at the time and that his partner was expecting a child.  The Judge said the material before him also indicated Mark Service had an alcohol problem.  The Judge considered a starting point of three and a half years imprisonment was appropriate.  That sentence was ultimately reduced to a sentence of 12 months home detention, reflecting Mark Service’s age and previous good character.  Mark Service was also ordered to pay $2,000 by way of reparation.

The appellant’s submissions

[31]     Taking first the appellant’s challenge to the starting point, the appellant acknowledges that there is some difficulty with this argument. That is because it is accepted that this offending is within band two in Taueki.  However, by reference to other cases involving the application of the Taueki guidelines, the appellant says that the starting point should have been six years and that the Judge has erred in including the vulnerability of the victim as an aggravating factor.

[32]     The second submission on the sentence appeal is that the Judge erred in saying there were no mitigating factors, especially given his acceptance that there were mitigating factors in relation to Mark Service.

[33]     The third point relates to the Judge’s description of Richard Tattersfield’s  injuries.  Essentially, the appellant says it was wrong to rely on the material in the Victim Impact Report as to those injuries.  If the Crown wanted to rely on that material, the appellant submits that a proper medical report should have been provided.

[34]     Finally, the appellant challenges the appropriateness of the imposition of a minimum period of imprisonment.

Discussion

[35]     Putting to one side for the moment the treatment of vulnerability, the Judge was entitled to characterise the offending as falling within band two of Taueki and, in that context, we have not been assisted by the other cases relied on by the appellant. We also agree with the Crown that if there were concerns about the description of the injuries suffered by Mr Tattersfield, they should have been raised at sentencing. 

[36]     In terms of questions of parity with the sentence of Mark Service, the relevant principles are discussed in R v Lawson [1982] 2 NZLR 219 (CA). In Lawson at 223, this Court emphasised that sentencing is not “an exact science” and that the circumstances of one offender can “rarely” be closely compared with those of another. The test is an objective one, namely (at 223):

[W]hether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[37]     With the qualification we make below arising from an uncertainty as to the starting point adopted, we consider this case does not offend these parity principles.

[38]     It is relevant, first, that the appellant was convicted of the more serious offence which carried a maximum term of 14, rather than seven, years imprisonment.  The appellant was also convicted of the intentional damage charge.  Mark Service, by contrast, was being sentenced for lesser offending, namely, as a party to the second more serious attack to Richard Tattersfield’s head.  Second, Mark Service was the younger of the two.  That said, the ultimate sentence imposed on Mark Service could be seen as lenient.  But a lenient sentence is not of itself a ground for interfering with a longer sentence imposed on a co-offender: R v Rameka [1973] 2 NZLR 592 (CA).

[39]     We do, however, differ from the Judge in the following respects.

[40]     First, we do not consider it was accurate to describe the complainant in this case as vulnerable.  Whatever that term encompasses, the victim here was able to respond with the baseball bat.  Second, we also accept there has been an element of double counting in the assessment of the aggravating factors of the offending.  That is because the victim’s vulnerability was seen to arise from the combination of factors which had already been taken into account, namely, home invasion and the use of a weapon.  Finally, we accept that it is not entirely clear what approach has been taken to mitigating factors and some discount was appropriate.  While the Judge says there were none, he also suggests that without the various references etc, the starting point would have been higher, that is, seven and a half years imprisonment.  If the Judge did take the higher starting point of seven and a half years, then there is merit in the argument that this is too high especially when issues of parity are brought to bear on the matter.

[41]     In these circumstances, we consider that the final sentence was manifestly excessive and we allow the sentence appeal.  In our view the appropriate sentence is six years imprisonment.  The imposition of a minimum period of imprisonment was open to the Judge.  In broad terms, we respect the approach taken by the Judge to the minimum period of imprisonment and substitute a minimum period of three years imprisonment.

Result

[42]     For these reasons, the appeal against conviction is dismissed.  The appeal against sentence is allowed. The concurrent sentences of seven years imprisonment with a minimum period of imprisonment of four years are quashed.  A sentence of six years imprisonment with a minimum period of imprisonment of three years is substituted on the charge of wounding with intent to cause grievous bodily harm.  A concurrent sentence of three years imprisonment is substituted on the charge of intentional damage.

Solicitors:

Crown Solicitor, Wellington