The Queen v Treymane and Shanks

[2008] NZCA 502

IN THE COURT OF APPEAL OF NEW ZEALAND

CA417/2008
CA439/2008
[2008] NZCA 502

THE QUEEN

v

JOSHUA DAVID TREYMANE
MICHAEL ANDREW SHANKS

Hearing:24 November 2008

Court:Robertson, Hugh Williams and Harrison JJ

Counsel:D G Slater for Mr Treymane

A S Tobeck for Mr Shanks
K Bicknell for Crown

Judgment:27 November 2008 at 3 pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]        Mr Treymane and Mr Shanks appeal against their convictions for injuring with intent to cause bodily harm under s 189(1) of the Crimes Act 1961 (“the Act”) in respect of which they were found guilty by a jury.

[2]        There were alternative counts of wounding with intent to injure under s 188(2) of the Act which became redundant after the jury’s guilty verdict on the more serious count.  Why the allegation as to consequence on the more serious count was injury, but on the less serious alternative was wounding, is not apparent.  However, it has no effect on the view we take of the case.

[3]        The appellants were each subsequently sentenced to two years and ten months’ imprisonment.

[4]        They appeal against conviction under s 385(1)(a) of the Act on the basis that the verdict should be set aside on the grounds that it is unreasonable and cannot be supported having regard to the evidence: R v Ramage [1985] 1 NZLR 392; R v Munro [2008] 2 NZLR 87; R v Owen [2008] 2 NZLR 37 (SC).

[5]        Counsel for the appellants accepted that, in the circumstances of this case, if the Court was satisfied that the verdicts were unreasonable, it would be appropriate to exercise the powers under s 386(2) of the Act and substitute a conviction for assault with intent to injure under s 192 of the Act and re-sentence on that count.

[6]        If that course was not adopted, both appellants contended that the sentence of two years and ten months’ imprisonment was in any event manifestly excessive. 

[7]        On behalf of Mr Treymane, it was further argued that his culpability was less than Mr Shanks and he had a less serious criminal history, so he should not have been treated in the same way as Mr Shanks.

[8]        In the course of the hearing, we granted leave for Mr Tobeck to abandon Mr Shanks’s appeal against sentence.

The facts

[9]        The charges arise out of an incident which was described by Judge Phillips, the trial Judge, in sentencing as follows:

[2]       … There was an altercation in the Main Street of Winton with you two as the ringleaders.  You two … were the people who involved others in this altercation.  It was not a group on group thing at all whereas there were people from Winton, a loose group of people who had been at the pub at Winton, there was your group from your car.  During the altercation six or seven male people from Winton were involved and a victim was knocked to the ground.  You (Shanks) struck a blow to the girl who went to that person’s aid.  The evidence which I accept establishes for the purposes of my sentencing to you, that the two of you proceeded to stomp on the head of the victim who was on the ground.  You kicked that victim about the head and the body. By stomping witnesses described you each as lifting your leg and driving the heel of a boot (I will come back the word ‘boot’) into the side of the person lying on the road surface in the Main Street in Winton.  I note that the victim (Mr Harland) said that he could not remember what happened to him but he ended up with seven stitches in his forehead. The witness, Davis, says that he saw Mr Harland get punched to the ground and saw him getting stomped and kicked to the head and upper body area. He described the actions as “sort of jumping on and bringing the foot down on the head or the upper body region at least three times”.  The witness McKay said that this group of ‘skinheads’ was saying “let’s have a fight” and began punching people.  She saw two ‘skinheads’ jumping and stomping on the head and kicking the victim Harland.  She described it as “jumping in the air and landing with one foot on the head, using all their force and that the aim was to the head”.  That witness saw it occur three to four times, ie the stomping, but she described the kicking to the head as repetitive and described it as trying to ‘… kick a ball with a foot’.  The witness Wendleborne says that ‘the man in blue jeans was lifting the heel of his foot up and driving up into the left side of the victim Harland’s head”.  She says that she saw that occur five or six times. That at the same time the man in the camouflage pants was stomping the chest, stomping and kicking, lifting his legs up and driving the heel of the foot into him.

[3]       From all the evidence I heard I find that both of you were involved in kicking (repetitively) Mr Harland while he lay on the ground and was unable to protect himself.  That both of you joined together in stomping on his head and upper body.  The stomping was where you used full force, lifting legs and jumping in the air, driving the heel of your boot or shoe into the side of the head. It appears clear to me on the evidence that you were not wearing workboots (the normal type as such) but rather what would be described as ‘runners’ or ‘sport shoes’ when this was occurring.  What is clear to me is that all of that describes an event involving serious violence.  It involves, in my view, you attacking a person who is entirely vulnerable to an attack while he lay on the ground after having been knocked to the ground.

Verdict unreasonable

[10]     The trial in the District Court was predicated on the basis that if the injuries sustained by the victim had been suffered prior to his being on the ground, then the appellants should be found not guilty.

[11]     The Judge said in summing up:

… it is the Crown’s case that the injury (or I may say at least part of the injury) was caused by the actions of stomping and kicking.  You have to assess as to whether or not you are satisfied, to the state of where you are sure, that Kyle Harland suffered either the injury or the wound, either in whole or in part, whilst he was on the ground being stomped and kicked.  If you are not so satisfied that it happened then, i.e. that it happened prior to him going to the ground, I think counsel for the defence were right, if you are not so satisfied, then quite clearly it was not occasioned at the time the Crown alleges.  Because the Crown alleges that the intent, i.e. the intent to cause grievous bodily harm or injury is to be inferred by you from the circumstances of the stomping and the kicking, and the injury or the wound has to be occasioned at the time that that intent was manifest (was there).  So if you are not sure that the injury or the wound was occasioned, either in whole or in part, at the time he was on the ground (Harland was on the ground), then it is a matter for you, but you would have difficulties in relation to the first element of each count.  You must assess that from all of the evidence.  You see, the accused say through their counsel the injury was caused before anything happened on the ground.

[12]     Why the allegation against these men was circumscribed to a determination of whether or not Mr Harland’s facial injuries were caused by either or both appellants is not clear.  Although there was no medical evidence called, the jury could have been left to draw inferences as to the inevitable consequences of injury caused by stomping and kicking someone on the upper part of the body while lying on the ground.  That is not how the case was run in the District Court.

[13]     We have put such possibilities beyond our consideration and have dealt with the appeal on the same narrow basis on which the case was left to the jury.

[14]     The issue is whether, on the totality of the evidence, there was a proper evidential basis for the jury to be satisfied beyond reasonable doubt that the damage to the victim’s face occurred while he was being stomped and kicked on the ground by these two appellants.

Counsel’s submissions

[15]     All three counsel undertook detailed analyses of the relevant evidence which, not surprisingly, was in some respects inconsistent.

[16]     Mr Harland himself did not know when he got the injury across his eyebrow which required the six or seven stitches.

[17]     Mr Davis said that he saw Mr Harland punched in the head and then knocked to the ground where the skinhead “with the army pants and another one with a black top on proceeded to stomp on his head or upper body area”.  He also said, in answer to a question from Mr Shanks’s counsel that he did not see any blood on Mr Harland’s face before he was punched to the ground and stomped and kicked.  Mr Davis was not challenged on this answer.

[18]     At trial there was a challenge as to whom Mr Davis was referring to and the fact that he was not able to determine where on Mr Harland’s body the stomping was directed.

[19]     Ms McKay said that she had seen Mr Harland punched with a clenched fist in the back of his head as a result of which he fell to the ground and then there were “two skinheads stomping on his head and kicking him”.  She was challenged as to exactly who the skinheads were.  She said one had a tattoo on the side of his head and neck and the other had a shaved head but she did not think he had tattoos and she did not recall what he was wearing.

[20]     The other witness was Ms Wendleborne who was pregnant at the time, had not been drinking and was sitting in a car a few metres from the scene with the car headlights on.  She said that she had seen bleeding on Mr Harland’s face while he was still standing.  She also said that she saw Mr Harland being stomped on while on the ground.  She described a cut above his left eye that was bleeding when she went to help him, but suggested that this had occurred before he was on the ground.

[21]     Mr Tobeck placed particular emphasis on the evidential value of closed circuit television coverage of the incident which he submitted did not reveal any kicking or stomping of Mr Harland on the ground.  Counsel argued this meant it could not have happened.  He argued that the CCTV coverage showed a person going to the ground and almost immediately standing up again and that there was just insufficient time for both the appellants to be kicking or stomping him a number of times while on the ground.

[22]     Counsel further noted that the ESR examination of Mr Shanks footwear did not reveal any traces of blood or hair from Mr Harland or anyone else.

[23]     The appellants’ positions were substantially predicated on the evidence of Ms Wendleborne that she had seen blood before Mr Harland went to the ground.  This is inconsistent with the evidence of Mr Davis and Ms McKay.

[24]     The Crown contends that the CCTV coverage is indistinct and in particular is not continuous footage.  It is in itself inconsistent with Ms Wendleborne’s testimony that she helped Mr Harland from the ground.

[25]     The Crown further observed that the absence of blood on the appellants’ shoes is not inconsistent with the Crown’s theory because it was kicks and stomps which precipitated the blood flow which would not have been sufficient to make the ground surface wet at the time that the attack occurred.  It also needs to be noted that on the clothing of each appellant there were spots of Mr Harland’s blood.

[26]     Mr Davis and Ms McKay did not budge from their contention that Mr Harland was not bleeding from the head prior to his going to the ground, and that was evidence which was available to the jury also.

[27]     Identity, which loomed large at trial, has not been an issue before us.

Discussion

[28]     Evidence about street altercations almost invariably contains inconsistencies and discrepancies.  Judge Phillips drew careful attention to the evidential difficulties in this case in summing up.  It is a jury function to decide which witnesses they accept and how much of their evidence they accept.  That is the nature of the exercise.  There is nothing inherently implausible about the evidence of either Ms McKay or Mr Davis. 

[29]     Upon careful analysis, it is questionable whether the evidence of Ms Wendleborne is as clear as to when she first saw the blood on Mr Harland and of course she said that while he was on the ground he was being stomped on the left side of his head with five or six stomps to the left side of his face.  Whatever the position, the jury also had the evidence of the other two witnesses who were clear in their recollection of when the blood was first seen.  The CCTV (which we viewed during the appeal hearing) does not undermine the utility of the evidence of Mr Davis and Ms McKay as it is not comprehensive. 

[30]     The conclusion reached by the jury was clearly available.  The evidence of Mr Davis and Ms McKay provided a proper evidential foundation for the essential elements of the count which the jury found proved.  Furthermore, the jury was entitled to infer from the unchallenged evidence of repetitive stomping on Mr Harland’s head that one or more of those blows punctured his skin and caused the wound on his face. 

[31]     Both appeals against conviction are dismissed.

Appeal against sentence

[32]     The Judge found that there had been gratuitous violence meted out to an innocent man who happened to be in the wrong place at the wrong time.  There was no question of provocation or self-defence which went too far.

[33]     Each appellant was liable to a maximum of ten years’ imprisonment.  The Judge took the view that the matter came within the lower end of the second band in R v Taueki [2005] 3 NZLR 372 (CA) which meant a sentence of three to seven years’ imprisonment. The Judge found there were no mitigating factors.

[34]     The Judge described the incident:

[11] … I find both of you stomped the head in the manner of jumping on the head with full force and kicking as if you were kicking a football.  This occurred in a public street.  It was street violence against other persons who were out for the evening in Winton, young people there to enjoy themselves.  They were not part of any gang or group as Mr Tobeck might like to infer, they were there together because in the end your group was attacking members or friends they knew from the Winton area.  Here you attacked the head.  You aimed your attack to the head. You did it, as I have already held, in concert with each other.  I find it surprising that there would be any submission made that the victim here was anything else other than vulnerable.  For goodness sake, he was lying on the ground, curled up, knocked out (unconscious he would say in his evidence), whilst you were doing these acts to his body and head.

[35]     Although he did not articulate any reason for the two months discount (and none is apparent to us as there were no relevant mitigating factors) it could not be said that the Judge’s starting and finishing points of two years and ten months were beyond his sentencing discretion.

[36]     The Judge said he saw no reason to differentiate between the two appellants, although he did not identify why.  We assume that he treated what had happened as a joint enterprise in which the pair were equally involved, even if some of the more serious aspects of it were committed by one.  Everything was with the participation, concurrence and knowing involvement of the other.

[37]     It is true that Mr Shanks has an appalling list of previous convictions whereas Mr Treymane had an unenviable list, but not as serious and not involving violence.

[38]     Mr Shanks was fortunate that the Judge did not treat his history as an aggravating factor.  Mr Shanks was well advised when he abandoned his appeal against sentence before us.  His history could have been viewed as calling for a significant uplift from the starting point.  There is no basis on which Mr Treymane can justifiably access the merciful approach adopted towards his co-accused.

[39]     These were not young men who got carried away on the night.  Mr Treymane is 22.  Mr Shanks is 26.  If they behave the way they did on this night, they forfeit the right to be in the community for a period of time which properly reflects society’s abhorrence of this sort of violent behaviour.

[40]     There is no merit in Mr Treymane’s sentence appeal which is also dismissed.

Solicitors:
Eagles Eagles & Redpath, Invercargill, for Mr Shanks
Crown Law Office, Wellington