Torrington v The Queen
[2020] NZCA 301
•20 July 2020 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA114/2019 [2020] NZCA 301 |
| BETWEEN | MICHAEL SAM TORRINGTON |
| AND | THE QUEEN |
| Hearing: | 17 June 2020 |
Court: | Courtney, Brewer and Hinton JJ |
Counsel: | N M Dutch for Appellant |
Judgment: | 20 July 2020 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
Mr Torrington was found guilty by a jury of causing grievous bodily harm with intent to cause grievous bodily harm.[1] On 15 January 2019, Judge KBF Saunders sentenced Mr Torrington to 11 years and three months’ imprisonment.[2] Mr Torrington’s co‑defendant, Mr Cramond, was sentenced at the same time to 11 years and eight months’ imprisonment.[3] A minimum period of imprisonment of 50 per cent was imposed on both defendants.
[1]Crimes Act 1961, s 188(1).
[2]R v Cramond [2019] NZDC 443 [Sentencing decision].
[3]Mr Cramond was found guilty of additional and related charges of threatening to kill and attempting to pervert the course of justice.
Mr Torrington now appeals his conviction. If he is unsuccessful, he appeals his sentence.
The basis for the appeal against conviction is trial counsel error. Although Mr Dutch for Mr Torrington advances a number of submitted failures on the part of trial counsel, the main one is that trial counsel did not cross-examine a major Crown witness.
To succeed in his conviction appeal, Mr Torrington must show that a miscarriage of justice has occurred.[4] First, Mr Torrington must establish an error or errors on the part of his trial counsel. Second, he must establish that there is a real risk the error or errors may have affected the outcome of the trial or rendered it unfair or a nullity.[5]
Background
[4]Criminal Procedure Act 2011, s 232(2).
[5]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].
On 28 August 2017, Mr Torrington lived in a house on a farm where he was employed as a farmhand. Visiting him were the complainant, Mr Lammas, and Mr Lammas’s partner, Ms Stewart. Mr Torrington’s friend, Mr Cramond, was also present.
The Crown’s case was that Ms Stewart had spent time driving about with Mr Torrington and Mr Cramond and had told them she had been assaulted by Mr Lammas earlier in their relationship. This caused Mr Torrington and Mr Cramond to decide they needed to teach Mr Lammas a lesson.
At about 7.00 pm the two men went into Mr Torrington’s house and began assaulting Mr Lammas. Mr Lammas ran from the house and headed towards the road along the farm race.
The Crown’s case was that Mr Torrington chased Mr Lammas on foot while Mr Cramond drove after him in his car.
Mr Lammas jumped into a neighbouring paddock. Mr Cramond caught up to him and resumed the assault. Mr Torrington, who was following behind, soon joined in.
Mr Lammas fell to the ground and curled up in a foetal position. The Crown’s case was that both men repeatedly kicked, punched and stomped on Mr Lammas’ head and body.
In his evidence describing the attack, Mr Lammas said he “could decipher between the two kickers”:
Q.Can you tell us more about that?
A. Well there’s slow and heavy kicks where Mike they were solid and they were hard, they were snapping my head backwards, there’s a faster kicks with Elisha, they were very very fast but no power there, there’s um, I remember the stomping on my head as well.
Q. Can you tell us about that?
A. Yeah, there’s, um, I was just laying there, I just remember get stomped in the head and, um, while at one point there while I was getting my head kicked in I was getting things off the race and cow shit rubbed in my face and, um, they were trying to jam it into my mouth as well, it was, yeah, it’s…
Q. And when you say, “They,” who are you talking about?
A. Mike Torrington and Elisha Cramond.
Q. How do you know it was them that was doing this?
A. Well there are only four people on the farm that night and they were the only two people chasing me from when I left the house.
Q. When you were on the ground getting kicked did you see them?
A. Um, initially at first I didn’t, when my finger was being bitten I remember looking up, that’s one of the last visions I’ve had, I remember looking up and seeing Mike with his scraggy as hair, it was, um, I didn’t see too much that night but I do still have some visions of that night.
Later there was this exchange:
Q. You talked about biting, could you tell us about that as much as you can?
A. Um, while I was, I was getting my head kicked, kicked and, um, and I felt a, an unusual pain and it made me look up, and I went, “Oh,” my hand was up like that and it was bent way down like this and it was Mike biting my finger.
Q. How do you know it was Mike?
A. I laid eyes on him.
During the assault Ms Stewart telephoned the police using a phone Mr Lammas had handed her as he ran from the house. The recording of that 111 call became important evidence in the trial.
In his interview with the police, Mr Lammas said that at one stage he felt something go down the back of his trousers, between his buttocks, and be inserted into his anus. Both Mr Torrington and Mr Cramond faced a charge of sexual violation as a result. However, Mr Lammas failed to come up to brief on the allegation of anal penetration and trial counsel secured the discharge of both defendants on this charge pursuant to s 147 of the Criminal Procedure Act 2011.
Mr Lammas was badly injured. He lost his right eye. He received serious head injuries including bleeding on his brain, extensive bruising to his groin, genital and anal area, and extensive bruising to his head and face.
In his subsequent interview with the police, Mr Torrington described an altercation with Mr Lammas in which Mr Lammas threatened Mr Torrington with a chisel and put Mr Torrington in a headlock. The implication was that Mr Lammas was jealous of the way Mr Torrington was interacting with Ms Stewart. The incident did not go further than Mr Torrington fending off Mr Lammas with a couple of pushes.
Mr Torrington said that Mr Lammas left the house with Ms Stewart and the last he saw of them they were walking up the drive. Mr Torrington said he remained in the house with Mr Cramond.
Mr Torrington denied that he assaulted Mr Lammas outside the house. He denied Mr Lammas’s accusation that during the assault Mr Torrington bit his finger. Mr Torrington denied kicking Mr Lammas while he was on the ground. He said he had no idea what happened when Mr Lammas and Ms Stewart left his house.
We do not have a copy of Ms Stewart’s statement to the police. It is, however, common ground that it included an account of Mr Torrington assaulting Mr Lammas while Mr Lammas was on the ground.
The jury was played the audio recording of the 111 call made by Ms Stewart. A transcript of the 111 call was a Crown exhibit and we have seen a copy of it. Ms Stewart was taken through it in the course of her evidence.
When Ms Stewart gave evidence she was highly emotional and volatile. Initially, Ms Stewart gave evidence from the witness box but, because of her emotional distress, her mode of evidence changed to video link. Nevertheless, there had to be breaks to enable her to compose herself.
Ms Stewart put Mr Cramond as the man who decided to “get” Mr Lammas for his mistreatment of her earlier in their relationship.
Ms Stewart said that when she, Mr Cramond (whom she called “Elisha” or “Eli”) and Mr Torrington (whom she called “Mike”) returned to Mr Torrington’s house from their excursion, Mr Cramond ran inside:
Q.And so once he got out, what did he do?
A. He’s ran straight inside.
Q. How would you, from what you could see how would you describe his emotional state at that point?
A. Angry.
Q. Okay. What did you and Mike do when he ran off to the house?
A. I said to Mike, “Stop your mate, grab your mate, what’s he up to,” and we both proceeded to run inside.
Ms Stewart continued to describe Mr Cramond as the aggressor.
Ms Stewart described Mr Lammas (whom she referred to as “Aaron”) leaving the house and running towards the road. She said Mr Cramond got into his car and used it to chase Mr Lammas who jumped into a paddock. Mr Cramond got out of his car and pulled Mr Lammas to the ground. Ms Stewart described Mr Lammas in a foetal position with Mr Cramond punching and kicking him.
Ms Stewart then described Mr Torrington running up to the scene. Ms Stewart said she was already on the phone to 111 and that Mr Torrington took the phone from her (there is corroboration of this in the record of the telephone call).
Ms Stewart said that before Mr Torrington did that “he was just standing there”. Her evidence continues:
Q. Either during the phone conversation or after it can you tell us what, if anything, you saw Mike doing besides taking the phone off you?
A. At one stage there I was protecting Aaron’s head asking, “Why, why was he doing this and that I thought we were friends,” and he’s pulled my hoodie and he’s tried to pull me straight over Aaron, we were going like this with my arms and I, I’ve come out of my hoodie, straight out of my hoodie.
…
Q. ... Was there anything else that you saw Mike doing around this time?
A. No.
Q. After Mike pulled your hoodie off what did you do next?
A. I just went straight back to protecting Aaron’s head.
Q. And what happened then?
A.And that’s when Elisha’s pulled me away from Aaron and my head’s gone in a puddle.
Later, there was the following exchange between the prosecutor and Ms Stewart:
Q. Okay. At any point when you were out on the race and Aaron has begun – sorry Elisha has begun kicking Aaron on the ground or hitting him on the ground, did you see Mike do anything to Aaron?
A. No.
Ms Stewart was taken through the transcript of the 111 call. There is the following exchange:
Q. What guys were you referring to when you said that there was a fight going down between some guys?
A. Um, I was referring to Elisha and Mike and Aaron.
Ms Stewart was asked why she said to the call-taker, after saying she had been assaulted, the names “Mike” and “Eli”:
Q. Why are you telling the call taker about these names Mike and Eli?
A. So that they couldn’t get away with it if they managed to run away from the farm least their names were, were with the right people.
Q. Why did you use Mike’s name at that point?
A. ‘Cos he wasn’t helping and he pulled me off Aaron too and I just…
The point is that Ms Stewart describes Mr Cramond assaulting both Mr Lammas and herself but does not describe Mr Torrington doing so. Her evidence makes Mr Torrington seem more like a bystander. This is in contrast to what she told the police.
Ms Stewart was cross-examined by counsel for Mr Cramond but not by counsel for Mr Torrington. Ms Stewart did not further implicate Mr Torrington.
The police recovered text messages from Mr Torrington’s phone. One, sent by him after the incident, was:
…just stoved his head in bit his finger and yeah well his eyes he tried to get mine with his finger that’s how it ended up in my mouth.
Appeal against conviction
Failure to cross-examine Ms Stewart
Mr Dutch submits that the failure by trial counsel to cross-examine Ms Stewart was a fundamental error going directly to miscarriage of justice. The reason for this, Mr Dutch submits, is that aspects of the case upon which Ms Stewart could give favourable evidence were not elicited and, conversely, unfavourable testimony was not challenged. Crown counsel was able to put to the jury that the failure to cross‑examine meant acceptance on behalf of Mr Torrington of Ms Stewart’s evidence.
Mr Dutch submits that Ms Stewart should have been cross-examined on Mr Cramond’s defence that he had nothing to do with the assault on Mr Lammas. He submits Ms Stewart should also have been cross-examined on the text messages she sent after the event that appeared to contradict some of her evidence in court.
Mr Dutch refers also to Mr Torrington’s statement to the police that he could not have kicked Mr Lammas as alleged because he was still suffering the effects of a broken leg injury. He submits Ms Stewart should have been asked about that.
Mr Torrington waived privilege and so we have an affidavit from trial counsel, Mr Hine. On this topic he deposes:
Paragraph 12 – Cross examination of Tracie Stewart
19.It is correct that a decision was made not to cross examine Tracie Stewart.
This was made on the basis that Ms Stewart’s evidence had not come up to brief in terms of the allegations in her statement to the Police that Mr Torrington had held Mr Lammas whilst Mr Crammond had beaten him in the house, nor did she give evidence that Mr Torrington had run past her and had kicked Mr Lammas in the head as he lay prone.
20.I have recorded in my trial notes that on the 18th October 2018 after Ms Stewart took a break from giving evidence at 1510pm I attended on Mr Torrington and discussed Ms Stewart’s evidence and my inclination not to cross examine her unless something damaging was disclosed during Ms Beverages cross examination on behalf of Mr [Cramond].
As stated I indicated that view because her evidence had not come up to brief insofar as the allegations of violence by him towards Mr Lammas were concerned, whilst it had placed him at the scene it was arguable on her evidence and the 111 call that he was not involved in the attack and was more a witness that an active participant. He agreed with me about that. My trial note is detailed hereunder:
Witness requires break:
Adjourned: 1510pm
Atten on clint: MS Stewart not come up to brief: no evide he assltd Mr L. no real damage for our cas: cnfirms 111 call: dont propose to XXm unless something else harmful comes out:
resumes: 1524
Paragraph 12 – Cross examination of Tracie Stewart
21. Nothing harmful to Mr Torrington defense arose from Ms Beverages cross examination of Ms Stewart and I did not see any significant matters in issue that required me to cross examine her and with Mr Torrington understanding and agreement I did not cross examine her.
22. As to the time and date of the events being the subject of cross examination, Mr Torrington written instructions detailed above made it clear firstly that he was unsure as to the timing of these events, that his brief was not truthful in respect to the Mercedes motor vehicle and the road trip and burnout evidence and that Mr Lammas’ evidence had been correct.
23. He did not press upon me a wish for me to cross examine Ms Stewart on the issue he now raises in his affidavit and I had no wish to give the Crown any opportunity to revisit the issues of assault that had not come up to brief.
Mr Hine was cross-examined by Mr Dutch in the hearing before us. Mr Hine essentially confirmed, and gave more detail, of the matters set out in his affidavit. We accept his evidence.
In his affidavit, Mr Hine explains why he did not cross-examine either Mr Lammas or Ms Stewart on Mr Torrington’s leg injury:
12.It is correct that Mr Torrington advised that he had suffered a leg injury before the events that gave rise to the charges that he faced. This is referred to in paragraph 46 of his brief,
I did not consider the issue of that injury as being of sufficient moment to cross examine Lammas or Tracie Stewart on for the following reasons:
(i)Mr Torrington’s mobility was not a central issue at trial. He clearly was mobile and had the ability to work and drive and assist Mr Crammond in removing a cab from a truck that he was wrecking earlier that day, as well as at the time of the incident traverse the distance from his home to where the incident occurred on his driveway and back and to walk down the road to where the Police were stationed after responding to a callout.
…
(ii) The 111 call was enlightening inasmuch as it did not place Mr Torrington at the scene when the assaults commenced and illustrated that he arrived some time later, out of breath. I did not want to distract the jury from focusing either on the 111 call or the evidence of Tracie Stewart that did not implicate Mr Torrington, by asserting that Mr Torrington could not physically have assaulted Mr Lammas in circumstances where he clearly had some capacity to have done so if he had wished.
Mr Torrington also filed an affidavit and gave evidence before us. In his affidavit, Mr Torrington said Mr Hine did not discuss with him whether or not Ms Stewart should be cross-examined. Mr Torrington deposes that Mr Hine “just told me [i]n the court room”.
Mr Torrington in his evidence before us was cross-examined on the various signed notes of instruction exhibited to Mr Hine’s affidavit. An important note of instructions was exhibit “D” to Mr Hine’s affidavit. This was Mr Torrington’s instruction to Mr Hine that Mr Torrington would not give evidence. Mr Torrington denied that the signature on that document was his. The inference was that Mr Hine had forged his signature. Mr Hine denied that suggestion indignantly and we accept his evidence. This colours our view of Mr Torrington’s credibility.
Mr Torrington also said that Mr Hine did not brief his evidence and that the brief of evidence which Mr Torrington attached to his affidavit was not seen by Mr Torrington prior to trial. This is contrary to Mr Hine’s evidence and is contradicted by exhibit “A” to Mr Hine’s affidavit, which is a note of instructions signed by Mr Torrington (he accepts it is his signature) in which he refers to the brief of evidence “prepared by my Counsel” and which “contains the whole of my defence”.
Again, we accept the evidence of Mr Hine, and Mr Torrington’s evidence on the point further undermines his credibility.
The case against Mr Torrington depended on the evidence of Mr Lammas and on the evidence of Ms Stewart. His defence was that he did not participate in the assault on Mr Lammas and that he did not know how Mr Lammas got his injuries.
Prior to trial Mr Torrington knew that Mr Lammas named him as one of his attackers and so did Ms Stewart. The evidence of the 111 call clearly put Mr Torrington at the scene of the attack on Mr Lammas. The text message we have quoted at [33] sent by Mr Torrington contradicted his account to the police and involves Mr Torrington in the attack on Mr Lammas.
At the trial, Ms Stewart unaccountably failed to identify Mr Torrington as one of Mr Lammas’s attackers. Mr Hine formed the view that nothing of substance could be gained by cross-examining Ms Stewart and there was a very real risk that if he did so she might return to her brief of evidence and say that Mr Torrington was one of Mr Lammas’s attackers. Ms Stewart was an emotional and volatile witness. There was also the risk that topics opened in cross-examination could be used in re‑examination to further implicate Mr Torrington.
In our view, deciding not to cross-examine Ms Stewart was a trial tactic open to Mr Hine to choose. We are satisfied he discussed the matter with Mr Torrington and that Mr Torrington accepted Mr Hine’s advice on this point.
We see no error and no miscarriage of justice arising from the adoption of this trial tactic.
Inadequacy of counsel’s closing address
Mr Dutch submits that Mr Hine’s closing address to the jury undermined the defence case and inadequately put the defence case.
As to the undermining point, Mr Dutch criticises Mr Hine for saying to the jury:
You couldn’t help but be moved by the life changing extent of [the injuries] and to feel sympathy and sorrow that they have been suffered and anger and hostility towards those that inflicted them.
Mr Hine went on to tell the jury:
There is no place in our legal system for vigilante justice.
There is nothing in this point. Mr Torrington’s defence was that he did not inflict any of the injuries on Mr Lammas. It is a common, and appropriate, tactic for defence counsel to acknowledge sympathetically the injuries suffered by a complainant and to assure the jury that the defence does not try to justify them. The address then goes on to focus the jury on the exculpatory defence argument.
This tactic does not undermine the defence case. To the contrary, it can make the jury more receptive to focusing on the exculpatory argument.
Mr Dutch submits the closing address was inadequate also because Mr Hine challenged Ms Stewart’s credibility by contrasting text messages she sent with her evidence in Court. Mr Dutch submits Mr Hine should not have done that without cross-examining Ms Stewart herself. He submits also that the text messages had the effect of implicating Mr Torrington.
There is nothing in this point. Mr Hine was entitled to rely on answers given by Ms Stewart in cross-examination by Mr Cramond’s trial counsel. He was also entitled to refer to text messages which were in evidence and which needed to be addressed because they were in evidence.
Mr Dutch criticises Mr Hine’s dealing with what is called “the chisel incident”. This refers to the incident described by Mr Torrington to the police where he said that Mr Lammas, apparently at the time of the incident, threatened him with a chisel. However, Mr Hine explained that Mr Torrington had been inconsistent in his instructions as to whether the incident with the chisel happened just prior to the attack on Mr Lammas or whether it happened the night before. Mr Lammas, in his evidence, acknowledged that there was an incident with the chisel but said it was the previous evening.
In our view, whether or not the incident with the chisel occurred just prior to the incident or the previous night was largely irrelevant. What mattered was what happened during the attack on Mr Lammas when he was in the paddock. Further, if Mr Hine had addressed the jury urging it to accept that the chisel incident took place immediately before the attack on Mr Lammas, there was a real danger of providing the jury with an immediate motive for Mr Torrington to be involved with the attack on Mr Lammas.
Finally, Mr Dutch criticises Mr Hine for not addressing the jury on Mr Torrington’s assertion to the police that he had an injured leg and would have been incapable of doing the hard kicks that Mr Lammas attributed to him.
Again, there is nothing in that point. Mr Hine’s explanation (which we quote at [39]) shows there was ample evidence that Mr Torrington was leading an active life, apparently untroubled by the injury to his leg which had occurred some six months previously. Indeed, the evidence that Mr Torrington had run to the scene of the attack was corroborated by the sound of him panting during the 111 call.
The timing of a discharge application
As we have said, Mr Torrington and Mr Cramond faced a charge of sexual violation arising from Mr Lammas’s complaint to the police that he had been digitally penetrated during the attack on him. Mr Lammas did not come up to brief at the trial on the essential ingredient of penetration. As a consequence, at the conclusion of Mr Lammas’s evidence-in-chief the Judge discharged both defendants on that charge. Mr Dutch submits the timing of the discharge has resulted in a miscarriage of justice.
Mr Dutch submits the complainant’s evidential video interview, which was played to the jury, could not support the charge of sexual violation. Accordingly, the discharge application should have been made and decided prior to trial. In Mr Dutch’s submission, this would have avoided the jury hearing significant prejudicial evidence. He submits also that it was prejudicial to Mr Torrington for the jury to experience the discharge process because that might have made the jury feel “the process is somehow unfair”.
Mr Dutch extends his argument by submitting the medical evidence led in support of the sexual violation charge was wrongly admitted and was prejudicial. In Mr Dutch’s submission, whatever part of the doctor’s evidence was relevant and admissible should have been either read to the jury or put to the jury through written admissions.
There is nothing in this point.
The account given to the police by Mr Lammas in his evidential video interview does not directly allege digital penetration. It does, however, through a combination of description and gesture, permit an inference that there was a degree of penetration. We accept that defence counsel could have applied for a discharge prior to trial but had they done so the Crown would not have been limited to the account in the evidential video interview. The Crown could have interviewed Mr Lammas further on the point and defence counsel would run the risk that a direct allegation of penetration would have been made. Neither counsel chose to make an application for discharge prior to trial and that cannot be said to be an error going to miscarriage of justice.
Further, we do not accept there was prejudice to Mr Torrington by the jury hearing the evidence in support of the charge of sexual violation and then being told the defendants had been discharged on the charge for lack of evidence. We say this for two reasons:
(a)First, Mr Lammas’s evidence on this aspect of the attack on him, and the doctor’s evidence of the injuries to Mr Lammas in his anal area, was admissible in his trial in any event. It was part of the narrative and supported the Crown’s contention that Mr Torrington and Mr Cramond, in attacking Mr Lammas, wanted to humiliate and degrade him as part of teaching him a lesson.
(b)Second, there is no better illustration for a jury of the onus of proof and the standard of proof than to see a charge dismissed because the Crown has failed to prove it beyond reasonable doubt.
Publicity
Mr Dutch submits there was publicity during the course of the trial which “was significantly prejudicial and inaccurate”. In his submission this has led to a miscarriage of justice. The Judge should have granted trial counsel’s application for a mistrial.
On the opening day of trial an article was published online in the New Zealand Herald that was factually inaccurate. The article mistakenly reported that the prosecutor in opening told the jury that “the victim said when he awoke in hospital from a coma, he had been sodomised during the attack”.
This article was drawn to the Court’s attention on the second day of the trial. Both defence counsel applied for a mistrial which was declined by the Judge who instead made an immediate takedown order.
The Judge, in her summing up, gave the standard direction that the jury must ignore any publicity about the trial and decide the case only on what the jury saw and heard in the courtroom.
There is nothing in this appeal point. The jury heard the Crown’s opening address. The jury heard the evidence. The jury knew the Crown had not asserted that Mr Lammas said when he awoke in hospital that he had been sodomised during the attack. The jury knew there was no such allegation in the evidence and, in any event, the charges of sexual violation had been withdrawn from them.
There is no suggestion that the jury was aware of the mistaken article, still less that any juror was influenced by it. If any juror had been made aware of the article, and for some unaccountable reason thought it probative, the Judge’s direction was clear that it could not be taken into account.
Crown theory of the case
Mr Dutch criticises the prosecutor for suggesting to the jury in her closing address that the injuries suffered by Mr Lammas “must have involved more than one person”. Mr Dutch submits there was no evidential basis for that submission and that a miscarriage of justice has resulted from the jury hearing the submission.
Mr Dutch submits the prosecutor compounded her error by suggesting to the jury that Mr Torrington adopted a careful strategy to assault Mr Lammas only when Ms Stewart would not see him. Mr Dutch submits that the evidence of the 111 call made the prosecutor’s suggestion unsupportable.
There is nothing in this point. The jury heard direct evidence from Mr Lammas that he was assaulted by Mr Cramond and by Mr Torrington. Mr Lammas had a serious bite injury to a finger and his evidence was that it was Mr Torrington who inflicted that injury. The jury also saw the text message Mr Torrington sent after the incident in which he refers to biting the finger.
Ms Stewart did not say that she saw Mr Torrington assault Mr Lammas. The options for the Crown to submit to the jury were that either Ms Stewart did see an assault but failed to give evidence about it or that Mr Torrington’s part in the assault occurred when Ms Stewart was not there to see it.
In any event, miscarriage of justice does not result from relatively benign suggestions by counsel as to how the jury might regard evidence.
Decision
In summary, this was a straightforward case where the jury had to decide whether Mr Torrington took part in the attack on Mr Lammas. Mr Torrington’s denials to the police were never going to stand in the face of the evidence of the 111 call and the text message he sent about “stoving” in Mr Lammas’s head and biting his finger.
Mr Lammas gave direct evidence of Mr Torrington’s involvement in the assault. The defence profited from the unexpected failure of Ms Stewart to directly implicate Mr Torrington.
As we have found, trial counsel’s decision, with which Mr Torrington concurred, not to cross-examine Ms Stewart was a tactic that any competent counsel might have adopted. All the other points made by Mr Dutch are of peripheral, if any, relevance to the issue of whether there was a miscarriage of justice.
This Court has repeatedly held that appeals based on alleged counsel error are not an opportunity for minute examination of whether some aspect of the defence could have been dealt with differently or better. In our view, much of this appeal offends against this principle. [6]
[6]Xu v R [2019] NZCA 356 at [13], referring to Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [74].
It was well open for the jury on the evidence to convict Mr Torrington. It is apparent that the jury gave careful attention to the evidence and to findings of credibility and reliability because it acquitted Mr Cramond on charges of assaulting Mr Lammas with his car and of injuring Ms Stewart with intent to injure her. Both these charges depended upon the jury accepting Ms Stewart’s evidence.
Where counsel error is asserted on appeal the inquiry focuses on whether there has been a miscarriage of justice. Even if error is identified, if it is clear the error would not have affected the outcome the appeal must be dismissed.[7] Here, we do not identify error and even if Mr Dutch were correct in his assertions of error they are on matters which collectively would not have affected the outcome of the trial.
[7]Xu v R, above n 6, at [13].
It follows that Mr Torrington’s appeal against conviction does not succeed.
Appeal against sentence
The Judge, as we have said, sentenced Mr Torrington to 11 years and three months’ imprisonment. Mr Dutch submits this is manifestly excessive. The Judge also imposed a minimum period of imprisonment of 50 per cent of the sentence. Mr Dutch submits this was unjustified.
If we are satisfied that, for any reason, there is an error in the sentence imposed on Mr Torrington and that a different sentence should be imposed then we must allow his appeal.[8] If his sentence is manifestly excessive then that would be an error requiring correction. Likewise, if the minimum period of imprisonment is unjustified.
The sentencing
[8]Criminal Procedure Act, s 250(2).
The Judge gave her view of the evidence. She accepted that Mr Cramond and Mr Torrington decided they wanted to teach Mr Lammas a lesson because they were angered by Ms Stewart’s description of how Mr Lammas had been violent to her in the past.[9]
[9]Sentencing decision, above n 2, at [3].
The Judge accepted that Mr Cramond was the first person to chase Mr Lammas and that he was the one who caught Mr Lammas. The Judge said:[10]
There is no doubt, Mr Torrington, that you followed shortly behind. I accept that Mr Cramond delivered the first blows, but I also conclude that the jury’s verdict means that they were satisfied that once Mr Lammas was on the ground in that foetal position trying to defend himself that the pair of you repeatedly kicked him, punched him, stomped on his head and on his body. I accept the evidence before the jury on Mr Lammas’ account was at least 30 kicks and he was able to differentiate between the type of force that was used by the two offenders the jury were satisfied were the pair of you. The kicking was described as being like a rugby ball. There were times when Mr Lammas was unable to see because gravel and cow manure had been rubbed into his eyes and into his mouth. Clearly, the injuries to his body included the genital area and without doubt, Mr Torrington, you bit down on one of Mr Lammas’ fingers.
[10]At [4].
The Judge accepted that the Crown could not point to any specific act by either of the defendants individually (apart from Mr Torrington biting Mr Lammas’s finger) which caused the injuries sustained by Mr Lammas. The Judge was satisfied that the jury accepted both defendants were equally responsible and the Judge sentenced on that basis.[11]
[11]At [6].
The Judge had regard to Mr Torrington’s criminal history. She noted Mr Torrington’s convictions for violence and, in particular, a 2012 conviction for assault with intent to injure and threatening to kill for which he was sentenced to imprisonment for eight months.[12]
[12]At [7].
The Judge assessed starting points by reference to R v Taueki.[13] The Judge put the offending within band three which has a starting point range of nine to 14 years’ imprisonment.[14] The aggravating features identified were the extreme violence, the persistence of the violence and the fact that it was unprovoked and completely gratuitous. It caused serious injury to Mr Lammas, particularly the long term loss of his eyesight. His head was particularly targeted and there was more than one attacker. For much of the assaults, Mr Lammas was vulnerable because he was on the ground, defenceless, and slipping in and out of consciousness. The motive for the attack was characterised by the Judge as vigilante action.[15]
[13]R v Taueki [2005] 3 NZLR 372 (CA).
[14]At [34]
[15]Sentencing decision, above n 2, at [12].
The Judge accepted the Crown’s description of the offending as being particularly degrading and demeaning violence.[16] The Judge placed the offending towards the middle of band three of Taueki and adopted a starting point for both defendants of 11 years’ imprisonment. The Judge imposed a modest uplift of three months’ imprisonment to take account of Mr Torrington’s previous convictions for violence. The Judge did not find any factors personal to Mr Torrington which mitigated his offending. Mr Torrington continued to maintain his innocence and so no discounts were available for remorse or acceptance of responsibility.[17]
[16]At [14].
[17]At [20].
The sentencing of Mr Cramond had to address the charges of threatening to kill and attempting to pervert the course of justice upon which he had also been convicted. Having regard to totality, the Judge imposed an uplift of 12 months’ imprisonment. Therefore, Mr Cramond’s end starting point was 12 years’ imprisonment.[18]
[18]At [21].
The Judge gave a modest adjustment for Mr Cramond’s professed remorse of four months. That resulted in an end sentence for Mr Cramond on the lead charge of causing grievous bodily harm with intent to do so of 11 years and eight months’ imprisonment.[19]
[19]At [21].
The Judge turned finally to consider whether there should be a minimum period of imprisonment. The Judge was satisfied that the usual minimum period of imprisonment would not adequately meet the sentencing purposes of denunciation, deterrence and “most importantly accountability and the need to protect the public”. The Judge was satisfied that a minimum period of imprisonment of 50 per cent for both defendants would meet the purposes of sentencing. [20]
The appeal
[20]At [22].
Mr Dutch submits the Judge erred in treating Mr Cramond and Mr Torrington equally on the charge of causing grievous bodily harm with intent to do so. First, Mr Dutch submits, Mr Cramond was clearly the person who was most significantly involved in the violence. It was Mr Cramond who chased down Mr Lammas and who was already attacking Mr Lammas during the period Ms Stewart was making her 111 call. Clearly, Mr Torrington did not become involved in the assault until after the 111 call.
Mr Dutch criticises the Judge for finding that the jury must have rejected Mr Torrington’s account that the incident with the chisel occurred on the day of the attack. However, Mr Dutch acknowledges that if the chisel incident did occur just before the attack, that would not have justified Mr Torrington being involved in the attack. Mr Dutch does not suggest any causative link to the sentence from this alleged error and so we put it to one side.
The overall submission of Mr Dutch is that the Judge should have adopted a starting point of nine years’ imprisonment, being on the cusp of band two and band three. He relies on Tuhiwai v R as being a similar case where the sentencing Judge adopted a 10‑year starting point and this Court determined the starting point should have been nine years’ imprisonment.[21] Mr Dutch relies on another decision of this Court, Haimona v R,[22] in which a starting point of nine years’ imprisonment was taken in circumstances submitted by Mr Dutch to be more serious than this case.
[21]Tuhiwai v R [2012] NZCA 209.
[22]Haimona v R [2011] NZCA 375.
Mr Dutch submits that the starting point for both defendants should not have been the same. Mr Torrington should have had a starting point of around 12 months below that of Mr Cramond. On a starting point of nine years’ imprisonment, that would have meant a starting point for Mr Torrington of eight years’ imprisonment. Mr Dutch accepts there needed to be an uplift of around three months for Mr Torrington’s previous convictions and so an end sentence of between eight years and eight and a half years’ imprisonment should have been imposed.
Mr Dutch criticises the imposition of the minimum period of imprisonment, again because it treats Mr Torrington the same as Mr Cramond. The submission is that since Mr Torrington was not the instigator of the serious violence, nor did he join in until later, the Parole Board should not be deprived of the opportunity to assess Mr Torrington at the earliest possible moment.
The Crown submits that the aggravating factors identified by the Judge in the context of offending which was particularly degrading and demeaning violence justified the starting point of 11 years’ imprisonment.
Ms Hoskin for the Crown recognised that reference to other decisions will not generally be of assistance where there is a guideline judgment, but submitted the starting point is consistent with other broadly comparable decisions of this Court.[23]
[23]Rowles v R [2016] NZCA 208; Fane v R [2015] NZCA 561; and Tuau v R [2013] NZCA 623.
Ms Hoskin distinguished Tuhiwai because the injuries inflicted in that case were far less serious than in this case. In Ms Hoskin’s submission, both Haimona and Tuhiwai lack the degrading element of the attack on Mr Lammas, and evidence less premeditation than in the present case. Ms Hoskin identifies the persistence of the offending, which continued irrespective of the 111 call to the police, as a feature not present in the cases relied on by Mr Dutch.
Ms Hoskin submits the Judge was entitled to treat Mr Cramond and Mr Torrington equally when setting the starting point. The two had decided between themselves to teach Mr Lammas a violent lesson, Mr Cramond chased Mr Lammas down using his car while Mr Torrington came running after him. Mr Torrington was involved with Ms Stewart for a short time before joining the attack on Mr Lammas. By that time, Mr Torrington was well aware of the seriousness of the attack on Mr Lammas but that did not stop him joining in.
Ms Hoskin refers to a point made by the Court in Haimona which she submits applies very much to the present case:[24]
[36] We consider that the Judge was correct to adopt the same starting point for both offenders. Both appellants participated in the attack… As trial judge, the sentencing judge had the advantage of hearing all the evidence in making his assessment. This Court should be slow to differ from the trial judge’s assessment. We see no grounds to do so. …
Minimum period of imprisonment
[24]Haimona v R, above n 22.
Ms Hoskin submits that this Court’s observations in Taueki to the effect that in cases of serious violence minimum periods of imprisonment will not be rare or even uncommon[25] is illustrated by the fact that in all but one of the authorities referred to by counsel minimum periods of imprisonment were imposed. The exception is Tuhiwai where the offender was 19 years old with no serious history of violent offending.[26]
Decision
[25]Taueki, above n 13, at [57].
[26]Tuhiwai v R, above n 21, at [14].
We accept that Mr Lammas endured a prolonged and brutal attack which inflicted severe injuries. At the time of sentencing Mr Lammas had lost his right eye and the vision in his left eye was blurred. He reported loss of hearing in his right ear and other ongoing physical and psychological effects.
We accept also that the Judge was correct not to differentiate between Mr Cramond as the first attacker and Mr Torrington as the second attacker. The Judge, who had the advantage of hearing the evidence at trial, was satisfied that Mr Cramond and Mr Torrington agreed they would attack Mr Lammas to teach him a lesson. When Mr Torrington joined in the attack the seriousness of it was apparent. Mr Lammas was helpless on the ground. It was a joint attack.
The issue, therefore, is whether the starting point of 11 years adopted by the Judge was within the range available to her.
The Judge was correct to focus primarily on Taueki. It is the applicable guideline judgment. As the Judge identified, Mr Torrington’s offending should be placed in the mid-range of band three of Taueki, which is nine to 14 years.
However, reference to other cases can be useful in identifying the range of sentences imposed in broadly similar cases. We consider the cases referred to us by counsel are useful in this regard.
In Tuhiwai v R, this Court took a starting point of nine years in the following circumstances:[27]
·Altercation between two groups. Mr Tuhiwai pursued the victim in a car.
·Then, Mr Tuhiwai and some associates kicked, punched, and stomped on the victim. His face was stomped on.
·The victim suffered from blurred vision to the left eye, headaches and fatigue. He was off work for several months. The blurred vision was continuing at the time he provided a victim impact statement prior to sentencing.
[27]Tuhiwai v R, above n 21.
In Haimona v R, a nine-year starting point was taken. The case had these features:[28]
·Unplanned attack.
·Group violence involving kicking, stomping, and punches to the head.
·The victim suffered significant injuries. There were fractures to his skull and haemorrhaging to both sides of his brain. He was in a coma, and had to relearn basic skills such as eating and walking.
[28]Haimona v R, above n 22.
In Rowles v R, this Court approved a starting point of 10 and a half years in a case where:[29]
·The attack was unprovoked.
·Mr Rowles and an associate attacked a man at a convenience store in Wanaka for around four-and-a-half minutes. They inflicted 80 blows on the victim’s head and body, including kicking, punching and stomping on the victim.
·The victim was left with very serious brain injuries. He had to learn to walk, speak, eat, shower and toilet again. He struggles to walk and talk with others and cannot look after his young children. His long-term prognosis was uncertain.
[29]Rowles v R, above n 23.
In Tuau v R, a 12-year starting point was taken in the following circumstances:[30]
·Unplanned attack. Altercation in Wellington in the early hours of 15 September 2011.
·After being punched, Mr Tuau chased the victim until he was cornered in a dead-end driveway. Mr Tuau participated in the punching and kicking of the victim. Many of these kicks were to the head. When his head was kicked, it hit a concrete barrier behind him.
·The victim suffered from a serious brain injury. At the time of sentencing, he was unable to move purposefully and could not speak. His prospects of ever being able to do much more were slim.
[30]Tuau v R, above n 23.
The range of starting points in these broadly similar cases is nine to 12 years.
In our view a focus on the injuries suffered by Mr Lammas would indicate a starting point of 10 years. However, the premeditation of the attack, the purpose of the attack and the associated deliberate aspects of humiliation and degradation justify a higher starting point. The Judge took these factors into account and did not err in doing so.
We conclude the starting point of 11 years’ imprisonment was within the range available to the Judge and the end sentence was not manifestly excessive.
The Judge was clearly right to impose the minimum period of imprisonment. The serious violence, Mr Torrington’s previous convictions, and the pre-sentence report writer’s conclusion that Mr Torrington’s risk of re-offending is medium to high made the imposition of a minimum period of imprisonment entirely appropriate.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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