The Queen v Stephen McAnally

IN THE COURT OF APPEAL OF NEW ZEALAND

CA133/02

THE QUEEN

STEPHEN MCANALLY

Hearing:	28 August 2002
Coram:	Blanchard J Robertson J Panckhurst J
Appearances:	D G Slater for Appellant B J Horsley for Crown
Judgment:	29 August 2002

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

This is an appeal against a sentence of three years imprisonment imposed on Stephen McAnally in the District Court at Invercargill on 5 April 2002 following his plea of guilty to one charge that with intent to cause grievous bodily harm he caused grievous bodily harm.

The case is unusual in that the appellant is 52 years of age and has virtually no previous offending and certainly nothing in this category.
On Saturday 17 November 2000, he was at the home of his partner (Mrs A) in Invercargill. He had been drinking earlier in the evening. For some time Mrs A had been under extreme pressure and concerns for her safety because of the irrational and unlawful behaviour of her former partner Mr M. The sentencing Judge found, and we agree, that there was ample justification for the apprehension which both the appellant and Mrs A were suffering. There had been a number of incursions into Mrs A’s home and a continuing disregard of a protection order which had been granted in her favour.
At about 9.50pm on that night, Mr McAnally was about to leave Mrs A’s home when they heard a loud noise coming from the vicinity of a wheelie bin on the footpath including the sound of breaking glass. The appellant went outside. In the darkness he could not see exactly who was there but realised there were three people in the immediate vicinity of the wheelie bin and between him and his van. Mr McAnally jumped to the conclusion that one of these must have been Mr M, the former partner of Mrs A.
Tragically, none of the people were that man – they were three young people, two men and a woman, walking along the street on their way home minding their own business. One of them had been carrying a stubbie in his hand which he threw into the wheelie bin where it broke and then he kicked the wheelie bin out of his path.
The various sounds confirmed in Mr McAnally’s mind that this was the prelude to an attack from Mr M. He challenged the people in a loud voice and approached them. Mr McAnally pushed at one of them and at this stage the eventual victim, Mr Scully, also approached. The appellant reached into his pocket, took out a knife which he was carrying, opened it and stabbed Mr Scully in the stomach.
It was accepted throughout that when Mr McAnally acted in this way, he thought he was dealing with Mr M although he did not know what Mr M looked like and he had taken no care to establish identity when he lashed out with his knife in total disregard for the safety of Mr Scully.
Mr Scully was immediately disabled. He was taken to hospital where he spent 2½ weeks. He received a punctured liver from that attack and has two scars. Although the Judge accepted that he had made a full physical recovery, he was permanently scarred and was subjected to bouts of very severe pain. He had enjoyed an active sporting life prior to this incident but that has now all been curtailed for this 23 year old who has been shaken and affected mentally by the incident.
The sentencing Judge identified aggravating factors as follows:
-     Firstly, on this Saturday night you went to Mrs A’s house and you took with you that knife anticipating a confrontation with Mr M and so you took that knife intending to use it as a weapon if you had to.
-     Secondly, your act of stabbing this young man involved some deliberation. It involved your taking the knife out of your pocket and unfolding it and then using it.
-     Thirdly, this was an unprovoked attack upon this young man and I agree with Mr Garland (Crown Counsel) that it was reckless in the extreme. The fact that you stabbed his lower stomach, where as you say, serious injury is less likely to be caused than another part of the torso, and the fact that no permanent or life-threatening injury was caused, those facts are entirely fortuitous. This act had the potential to be life-threatening.
-     Fourthly, it is an aggravating feature of this offence that you did cause a grievous wound to this young man and one, as I have already said, that could have resulted in his death.
The Judge acknowledged in mitigation that credit should be given to the background of circumstances and the justifiable fear there was of violence both to the appellant and to Mrs A. He accepted that the appellant was genuinely remorseful and a man of good character with no previous convictions.
The Judge noted the offer to make amends in a monetary form and the advantage for Mr Scully in being spared the trauma of having to relive the incident by giving evidence.
The Probation Officer opined, and the Judge accepted, that this man constituted a low risk of reoffending.
The Judge concluded that s5 of the Criminal Justice Act 1985 applied and that issue is not challenged before us.
The Judge reached the conclusion that a proper starting point in light of the maximum penalty and the relevant authorities was four years’ imprisonment. He allowed a credit of one year and imposed the term of three years’ imprisonment.
The case fits within the bottom category of R v Hereora [1996] 2 NZLR 164 which indicates that for cases of wounding or causing grievous bodily harm with intent, an impulsive act of violence involving the use of a weapon or intent to inflict serious injury, will attract a sentence within the bracket of three to five years.
As far as this case is concerned, one cannot overlook the very serious injuries which were inflicted (which could well have been life threatening) and which caused quite catastrophic consequences for an active, young sport-minded man.
On the other hand, there is the very unusual circumstance of a 52 year old man who appears for the first time on a serious charge where his concern, fear and apprehension for himself and his companion were well founded. He made a serious error of judgment in ever arming himself and having done so actually pulling it out and using it once in a reckless and indiscriminate way.
Drawing those competing threads together, we are of the view that, within the Hereora guidelines, a proper starting point would have been at the lowest end of the scale, namely three years.
In all the circumstances, a reduction of a quarter as granted by the sentencing Judge appears to be appropriate. Therefore a majority of the Court are of the view that, in the unique circumstances of this case, a merciful sentence of two years and three months imprisonment would be sufficient to mark the actual culpability. Mr McAnally is not likely to offend again and any period of incarceration will have a profound effect upon him personally.
At that level of imprisonment, the issue of suspended sentence (this being a sentence imposed prior to 1 July 2002) or home detention, could not have arisen. Lest there be any misunderstanding, we make it clear that even if we had reached the view that a sentence of two years or less could have been appropriate, we would not have been persuaded that anything other than immediate imprisonment was required. Knives are an anathema in our community. Those who arm themselves with knives even in situations of apprehension or concern should know that if for whatever reason they use them and thereby cause harm, they will immediately forfeit the right to be within the community.
The appeal is accordingly allowed. The sentence of three years imprisonment is quashed. Mr McAnally is sentenced to two years and three months imprisonment.

SOLICITORS
D G SLATER, INVERCARGILL
CROWN LAW OFFICE, WELLINGTON

[2002] NZCA 212

29 August 2002