Tutbury v The Queen
[2018] NZCA 364
•12 September 2018 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA268/2018 [2018] NZCA 364 |
| BETWEEN | COLIN PATRICK TUTBURY |
| AND | THE QUEEN |
| Hearing: | 29 August 2018 |
Court: | Miller, Mallon and Gendall JJ |
Counsel: | G R Tomlinson for Appellant |
Judgment: | 12 September 2018 at 11.00 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
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REASONS OF THE COURT
(Given by Mallon J)
Introduction
Colin Tutbury and his co-defendant, Wayne Matchitt, were convicted on a number of charges following a District Court jury trial before Judge Harding.[1] Mr Tutbury appeals his conviction on the charge of wounding with reckless disregard. The appeal is on the basis that the evidence did not support the charge. If he is unsuccessful in his conviction appeal he also appeals his sentence of one year’s imprisonment on the basis it is manifestly excessive.
The background
[1]R v Tutbury [2018] NZDC 8749. Mr Tutbury was convicted of wounding with reckless disregard (Crimes Act 1961, s 188(2)), common assault (Crimes Act, s 196) and two counts of intimidation (Summary Offences Act 1981, s 21(1)(e)). Mr Matchitt was convicted of threatening to do grievous bodily harm (Crimes Act, s 306), common assault and two counts of intimidation.
The events giving rise to the charges took place at Opape Beach, Ōpōtiki on the evening of 22 November 2016. They began when Mr Tutbury and Mr Matchitt took issue with a couple who had returned from a fishing trip. In abusive language, Mr Tutbury asserted the land was his, that the couple had desecrated the beach and they were required to let him check their fishing quota. Mr Matchitt joined in the confrontation.
At about the same time, a local person, M, arrived at the beach in her car with her children. There was an unpleasant confrontation between M and Mr Tutbury. She returned to her address and informed her partner, J, that she had been threatened with rape. J immediately drove to the beach in a considerably agitated state. In the ensuing confrontation Mr Tutbury reached into the back of his utility vehicle and took up a machete. J received a deep cut to his arm from the weapon. J was bleeding heavily and left the scene. Mr Tutbury proceeded to strike J’s car with the machete and smashed the wing mirror off.
The couple who had been abused initially called the police. Mr Matchitt continued his abuse of them and Mr Tutbury joined him. The male was twice threatened that he was going to be stabbed. Mr Tutbury shoved the man a couple of times and Mr Matchitt shoved the woman. Mr Tutbury and Mr Matchitt then left and drove the short distance to Mr Tutbury’s house. Shortly afterwards, J arrived at the address and there was a further altercation.
Mr Tutbury was arrested the next day. He said J had him bent over the back of his vehicle and was threatening to kill him. He reached for the first thing he could find in self-defence. The machete was a general tool he used for cutting gorse and prickles. Police enquiries located a text message on Mr Tutbury’s cell phone sent to an associate which said: “Had a big punch up. Just about cut off the cunt’s arm. He was lucky”.
Mr Tutbury and Mr Matchitt faced a number of charges arising from this series of events. In relation to the cut J sustained from the machete, Mr Tutbury was charged with wounding with intent to cause grievous bodily harm (charge 5) and an alternative charge of wounding with reckless disregard (charge 6). The issue at trial on these charges was whether Mr Tutbury had intentionally swung the machete at J, as J claimed, or whether J had sustained the cut as Mr Tutbury held the machete to protect himself.
At trial, the only evidence supporting a deliberate strike was given by J. He described Mr Tutbury grabbing the machete, swinging it at him and trying to take his head off. This was not consistent with what he had told the police. When recounting the incident to the police he said he had not seen the machete. He had described Mr Tutbury pushing him and then noticing he had been cut.
The balance of the Crown evidence on this charge was given by four members of a family who observed the incident from a neighbouring property. None of them saw Mr Tutbury striking J. They said J was chasing Mr Tutbury around his ute. Two of them said Mr Tutbury grabbed something from the back of the ute and was holding it up when J lunged at him. One said only that they saw J step backwards holding his arm. The fourth family member did not have a good view because one of the vehicles was in the way.
The trial Judge provided the jury with a question trail which set out the elements of the offences and self-defence. It also contained a short statement of the respective cases for the Crown and the defence. For charge 5, this was follows:
Crown case: The defendant deliberately struck [J] with the machete causing a wound and intending him grievous bodily harm.
Defence case: The defendant did not strike [J] with a machete and had no intention to cause him any harm. He held up a machete to defend himself.
On charge 6 (the alternative charge), the Crown and defence cases were summarised as follows:
Crown case: The defendant caused a wound to [J] with the machete with reckless disregard for the consequences.
Defence case: The defendant did not cause the wound to [J] with a machete and was not reckless. He held up a machete to defend himself and deter [J].
Mr Tutbury was found not guilty of charge 5 and guilty of charge 6. He was also found guilty of two charges of intimidation and a charge of assault relating to the couple. He was found not guilty of a charge of assault relating to M and a charge of threatening to kill M’s father.
Appeal against conviction
Mr Tutbury contends that, in finding him not guilty of charge 5 and guilty of charge 6, the jury cannot have accepted J’s account that Mr Tutbury deliberately swung the machete at him. This is because, had the jury acquitted him of charge 5 on the basis that he deliberately struck J but did so in self-defence, this would have also resulted in an acquittal on charge 6 on the same basis.
Mr Tutbury submits that, once J’s account of a deliberate strike was rejected, there was no basis for charge 6. That is because, if there was no deliberate swing, there is nothing in the evidence that supports a conclusion that Mr Tutbury’s actions were causative of the J’s wound. The Crown was left with the evidence of the witnesses who described J lunging at Mr Tutbury. On the basis of that evidence, Mr Tutbury submits J’s wound was caused by J’s lunge rather than Mr Tutbury’s actions in holding the machete defensively.
In sentencing Mr Tutbury the Judge said:[2]
… there is no evidence of, and the Crown accepts that there was no deliberate striking with the machete.
Having seen and heard the evidence, my conclusion is that the most likely explanation for what happened is that having picked up the machete he then held it up and turned around so as to face away from the ute and towards him as he approached. The result was a significant contact between his right arm and the blade, causing a large and deep cut in the arm …
[2]R v Tutbury, above n 1, at [5]–[6].
Mr Tutbury says this view of the evidence does not deal with how his actions, rather than J’s, were causative of the wound.
We consider there was evidence to support charge 6 notwithstanding the acquittal on charge 5. As the Crown submits, the jury may have rejected J’s account at trial of Mr Tutbury swinging the machete to try and take J’s head off, but nevertheless have accepted his evidence to the extent that he was cut because Mr Tutbury intentionally swung the machete at him. This would have been consistent with Mr Tutbury’s aggression before and after the confrontation with J. The jury may have reasoned that in striking J, Mr Tutbury did not intend to cause grievous bodily harm. On this version of events, Mr Tutbury would have been not guilty of charge 5 without the jury needing to consider self-defence on that charge. This version of events would also form an evidential basis for wounding with reckless disregard. If Mr Tutbury struck J, there was also an evidential basis for the jury to exclude self‑defence. The use of the machete may have been viewed as excessive force in the circumstances as Mr Tutbury believed them to be.
Alternatively, and as the trial judge viewed the evidence, the jury were entitled to conclude that Mr Tutbury knew what he was retrieving from the back of his ute, and that he would have foreseen the risks involved in suddenly presenting the machete at someone with whom he was engaged in an aggressive confrontation.[3] The jury was entitled to conclude that his actions in presenting the machete at J were a substantial and operative cause of the cut J sustained even though J’s lunge was a contributing cause. The jury were further entitled to conclude that those actions were an unjustifiable escalation on Mr Tutbury’s part that went beyond the bounds of self‑defence.
[3]At [6].
We therefore dismiss Mr Tutbury’s appeal against conviction.
Appeal against sentence
Mr Tutbury submits his sentence was manifestly excessive and did not require a prison term. He was released from prison on the day we heard his appeal. His appeal against sentence is therefore somewhat academic. However Mr Tutbury maintains his appeal because he considers his record should properly reflect his culpability.
The Judge took the wounding charge as the lead charge. He adopted a starting point of one year’s imprisonment. In reaching that starting point, the Judge said the use of the weapon and the injuries caused would justify a starting point of two years’ imprisonment. However, because J had started the confrontation, “who was bigger, younger and stronger”, and the use of the machete was defensive, it was appropriate to halve the starting point.[4] The Judge added two months for the intimidation and assault charges. He did not add any uplift although Mr Tutbury had seven, somewhat dated, prior convictions for assaults. He deducted two months from the sentence for time spent on restrictive bail. There were no other mitigating factors. This resulted in an end sentence of one year’s imprisonment on the wounding charge and concurrent sentences on the intimidation and assault charges. He declined home detention on the basis of Mr Tutbury’s ongoing violent propensity and his continuing denial and absence of remorse.[5]
[4]At [19]–[20].
[5]At [21].
Mr Tutbury submits that the start and end point for this charge was one of community work. He says that this was a unique factual situation at the extreme minimum end of recklessness. He says it was not realistic for him to have fled when faced by an enraged man 20 years his junior. He submits that a start point of jail must be reserved for situations of overt or deliberate reckless actions.
We do not accept this submission. The Judge specifically took into account the matters that are raised. His end point of one year’s imprisonment was open in the circumstances. Moreover, if we were to quash the sentence and impose community work Mr Tutbury would be required to carry out that community work on top of the six months he has served in prison. That would not be appropriate.
The appeal against sentence is dismissed.
Result
The appeals against conviction and sentence are dismissed.
Solicitors:
Gowing & Co Lawyers Ltd, Whakatāne for Appellant
Crown Law Office, Wellington for Respondent
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