The Queen v Thomas - [2003] NZCA 272

IN THE COURT OF APPEAL OF NEW ZEALAND
CA282/03
THE QUEEN
v
CHARLIE LEO THOMAS
Hearing:25 November 2003

Coram:Gault P
Goddard J
Rodney Hansen J
Appearances: F Hogan for Appellant

A Markham for Crown

Judgment:26 November 2003

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1]       The appellant pleaded guilty on arraignment to one count of driving whilst disqualified (third or subsequent occasion – s32 Land Transport Act 1998) and one count of injuring with intent to avoid the arrest of himself upon the commission of the crime of disqualified driving (s191(2) Crimes Act 1961). The charge of driving whilst disqualified carries a maximum penalty of two years imprisonment, or a $6,000 fine, and has a mandatory minimum period of disqualification of one year. The charge of aggravated injuring with intent to avoid arrest under s191(2) carries a maximum penalty of seven years imprisonment.
[2]       Following the appellant’s guilty plea a disputed facts hearing was held into whether the evidence established beyond reasonable doubt that the appellant had used a weapon in inflicting the aggravated injury. At the conclusion of the hearing, the sentencing Judge determined that a weapon had been used by him and sentencing proceeded on that basis. The appellant was sentenced to 4½ years imprisonment on the aggravated assault charge and to a cumulative term of nine months imprisonment on the charge of driving whilst disqualified. In addition, a minimum non parole period of 50% of the 4½ year sentence for aggravated assault was imposed.
Brief facts
[3]       The appellant was disqualified from driving indefinitely on 28 February 1994. On 24 June 1998 and 25 August 1998 he again appeared on charges of driving whilst disqualified and was convicted on each occasion. The events that gave rise to the subject charges took place at about 2.30am on Friday 25 October 2002. The appellant who had been drinking (he admitted to having consumed eight Steinlager stubbies) was observed by a police constable on lone patrol to be driving erratically on Great South Road, Takanini. The complainant, Constable McGrogan, stopped the appellant’s vehicle on the northbound on-ramp to the Southern Motorway and administered a roadside breath screening test, which the appellant failed. In accordance with usual procedures Constable McGrogan then required the appellant to accompany him to a police station. However the appellant refused to do so and became aggressive. He then refused to be handcuffed and Constable McGrogan became apprehensive about the situation and decided he should call for backup help. To buy time, he instructed the appellant to get a document out of his vehicle and while the appellant went to his vehicle and rummaged around in it for the document, Constable McGrogan radioed for backup assistance. At that point, Constable McGrogan heard a female passenger in the appellant’s car saying “don’t” twice, followed by a man’s name.
[4]       The appellant then walked back towards Constable McGrogan holding his right hand slightly behind his back and confronted him in what the constable described as an “aggressive manner”.…

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.

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Details

AGLC: The Queen v Thomas [2003] NZCA 272
Case: [2003] NZCA 272
Decision Date: 26 November 2003

CaseChat Overview and Summary

In this case, the appellant, Charlie Leo Thomas, appealed against his conviction and sentence for two charges: driving whilst disqualified and injuring a police officer with intent to avoid arrest for disqualified driving. The Court of Appeal of New Zealand heard the appeal and delivered a judgment. The central issues were whether the appellant used a weapon during the assault and whether the sentence imposed was appropriate. The court found that the sentencing judge's decision that a weapon was used was supported by expert evidence and the appellant's own ring could not have caused the injuries. The court also determined that the sentence was appropriate, considering the serious nature of the assault on a police officer and the appellant's criminal history. The appeal was ultimately dismissed.

The final orders of the court were that the appeal against the conviction and sentence be dismissed, maintaining the original judgment and sentence imposed by the sentencing judge.

Orders