The Queen v Thomson

[2008] NZCA 183

IN THE COURT OF APPEAL OF NEW ZEALAND

CA668/07
[2008] NZCA 183

THE QUEEN

v

HERBERT HENRY CHARLES THOMSON

Hearing:18 June 2008

Court:Chambers, Priestley and Winkelmann JJ

Counsel:W Lawson and M Simpkins for Appellant

A R Burns for Crown

Judgment:26 June 2008 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

The facts

[1]       On 25 March 2006, Herbert Thomson, the appellant, and a friend, Vernon Stenning, were drinking at Lake Tarawera, near Rotorua.  They decided they would “give a hiding” to John Wahia, who had allegedly assaulted Mr Stenning’s cousin the night before.  They picked up a baseball bat and then drove off in Mr Thomson’s car in search of Mr Wahia, eventually locating him at 9 pm.  They gave him a false story to lure him into their car.

[2]       They drove to an address in Rotorua.  They got out.  Mr Stenning fetched the baseball bat from the boot.  He confronted Mr Wahia and said, “You fucked up my cousin, so I’m going to fuck you up.”  Mr Thomson punched Mr Wahia in the face, causing him to fall to the ground.  Mr Stenning hit Mr Wahia on the head and back with the baseball bat.  As Mr Wahia attempted to get up off the ground, Mr Stenning hit him again with the bat.  Mr Thomson then kicked and punched Mr Wahia about the head.  Mr Wahia lay on the ground, motionless.  Mr Thomson backed away and got into the car.  Mr Stenning followed.

[3]       Mr Wahia was flown to Auckland Hospital and put into a drug‑induced coma.  He had five serious fractures to his skull.  Surgeons removed part of his damaged skull to allow his brain to swell.  He lived – fortunately.  But he has been left with serious physical and psychological injuries.

[4]       Police charged both attackers with attempted murder and, in the alternative, with causing Mr Wahia grievous bodily harm, with such intention.  Eventually, the Crown agreed to drop the attempted murder charge in return for guilty pleas to the alternative charge.

[5]       Williams J sentenced both men on the same day: R v Stenning and Thomson HC ROT CRI 2006‑044‑2261 31 October 2007.  He sentenced each to eight years, nine months’ imprisonment.

[6]       Mr Thomson now appeals against his sentence.

Issues on the appeal

[7]       There are two issues on the appeal.

[8]       The first is whether the judge wrongly assessed Mr Thomson’s culpability vis-à-vis Mr Stenning’s. 

[9]       The second is whether the judge wrongly assessed the victim’s condition.

Did the judge wrongly assess Mr Thomson’s culpability?

[10] The judge adopted a starting point for both men of 11 to 12 years’ imprisonment: at [27]. Mr Lawson, for Mr Thomson, accepted that was appropriate for Mr Stenning, but submitted the starting point for Mr Thomson should have been one year lower. This was because, he submitted, Mr Thomson had played the lesser role in the offending. Mr Lawson had made a similar submission to Williams J. His Honour rejected it, and so do we. There is nothing to distinguish the broad culpability of the two men. They set off with a common purpose. Mr Thomson knew full well that a baseball bat was going to be used in the attack. It does not matter in this case which of them actually wielded it. As well, Mr Thomson was fully involved in the physical attack on Mr Wahia. He punched and kicked him, including on his head. Williams J was right to treat the men’s roles as broadly equal and mutually supportive in achieving the common purpose.

[11]     The first ground of appeal fails.

Did the judge wrongly assess the victim’s condition?

[12]     The second ground of appeal relied on an affidavit sworn by Raewyn Thomson, Mr Thomson’s sister.  She said that, on the day of sentencing, she had seen Mr Wahia leave the Rotorua courthouse and “walk to his car by himself, get in and drive away without any apparent difficulty”.  The fact he could do that was said to be inconsistent with the information available at sentencing as to the impact this offending had had on Mr Wahia. 

[13]     Even if what Ms Thomson says is true, it does not affect our view of the seriousness of this offending or its effect on Mr Wahia.  And we do not consider it would have affected Williams J’s view either.  Mr Wahia was very seriously injured.  The head injuries he received were potentially life‑threatening.  Following the attack, Mr Wahia spent a week or so in Auckland Hospital’s Intensive Care Unit.  He was then transferred to Rotorua Hospital, where he spent a further two weeks.  He then had to live full time at the Phoenix Rehabilitation Centre in Hamilton for a further six months.  His wife had to give up her job to move to Hamilton to be there to help him get better. 

[14]     Mr Wahia has had to learn how to walk, talk, read, write, and spell.  As he said in his victim impact statement, it “was like [he] was starting out life again”. 

[15]     The injuries have had long‑term effect, both physical and psychological.  The Phoenix Centre has assessed him as having suffered 60% impairment for the purposes of accident compensation.  He has not been able to return to work; he had been, at the time of the attack, a qualified butcher.  We do not need to spell out all the details of his permanent injuries.

[16]     Frankly, we found it surprising that Mr Thomson chose to run this argument.  It rather cuts across the extreme remorse Mr Thomson told Williams J he felt, which the judge took into account when fixing what Mr Lawson accepted was a generous discount from starting point.

[17]     We have no hesitation in rejecting this ground of appeal.  To be fair to Mr Lawson, he pressed this point but lightly. 

Result

[18]     Mr Lawson accepted that, with the exception of the two points just discussed, the judge’s reasoning on sentencing could not be faulted.  Since we have decisively rejected the two grounds of appeal, it follows the appeal must be dismissed. 

Solicitors:
Lance & Lawson, Rotorua, for Appellant
Crown Law Office, Wellington