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…

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.

Continue reading The Queen v Thomson

Details

AGLC: The Queen v Thomson [2008] NZCA 183
Case: [2008] NZCA 183
Decision Date: 26 June 2008

CaseChat Overview and Summary

The appeal was brought by Herbert Henry Charles Thomson against his conviction and sentence for causing grievous bodily harm with intent. Thomson, along with his friend Vernon Stenning, had assaulted John Wahia, who had allegedly assaulted Stenning’s cousin the night before. They used a baseball bat in the attack, leaving Wahia with severe and life-threatening injuries. Thomson and Stenning were charged with attempted murder but eventually pleaded guilty to the lesser charge of causing grievous bodily harm with intent. Both were sentenced to eight years and nine months' imprisonment. Thomson appealed against his sentence, arguing that the judge had wrongly assessed his culpability and the impact of the attack on Wahia.

The Court of Appeal considered two issues in the appeal: whether the judge had wrongly assessed Thomson’s culpability in comparison to Stenning’s, and whether the judge had wrongly assessed the condition of the victim. The court found that Thomson’s role in the attack was equal to that of Stenning, as both had a common purpose and Thomson was fully involved in the physical assault. The court dismissed the argument that the victim’s condition was not as severe as presented at sentencing, noting the extensive injuries and long-term effects on Wahia’s physical and psychological health.

Given that the Court of Appeal found both grounds of appeal to be without merit, it dismissed the appeal. The reasoning of the original sentencing judge was upheld, and Thomson’s sentence remained at eight years and nine months' imprisonment.

Orders