Vincent v R

[2015] NZCA 201

IN THE COURT OF APPEAL OF NEW ZEALAND

CA870/2013
[2015] NZCA 201

BETWEEN	DEAN MICHAEL VINCENT Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2015
Court:	Randerson, Miller and Cooper JJ
Counsel:	R M Lithgow QC and N Levy for Appellant J C Pike QC for Respondent
Judgment:	27 May 2015 at 11:30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.

B    The appeal against sentence is allowed. 

CThe sentence of six years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted, cumulative upon all existing sentences.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction
The circumstances of the offending
Mr Vincent’s statement to the police
Mr Vincent’s evidence at trial
Mr Pratt’s evidence at trial
The ruling on self-defence
The summing-up
Did the Judge err in taking away self-defence from the jury?

Submissions
Self-defence — discussion
Taking away self-defence from the jury

The jury questions
Jury questions — discussion

First and second questions
The third question
The fourth question

The appeal against sentence

The Judge’s approach
Counsel’s submissions on sentence
Sentence appeal — discussion

Result

[1]
[3]
[7]
[11]
[14]
[15]
[17]
[20]
[20]
[24]
[30]
[35]
[41]
[41]
[45]
[47]
[53]
[53]
[58]
[63]
[66]

Introduction

1. The appellant Mr Vincent was found guilty after a jury trial in the District Court on one count under s 188(1) of the Crimes Act 1961 of wounding with intent to cause grievous bodily harm.[1]  Judge Davidson presided over the trial and sentenced the appellant on 28 November 2013 to six years imprisonment, cumulative upon other sentences of imprisonment then being served. 

   [1]R v Vincent DC Wellington CRI-2012-078-1364, 28 November 2013.  

2. Mr Vincent now appeals against both conviction and sentence.  He advances the conviction appeal on two grounds: 

   (a)The trial Judge wrongly took away self-defence from the jury.

   (b)The Judge erred in answering jury questions.

The circumstances of the offending

1. The incident giving rise to the charge occurred on 28 August 2012 in the High Medium Unit at Rimutaka Prison where both Mr Vincent and the victim Mr Stoneham were fellow inmates.  It is not in dispute that, on that day, Mr Vincent stabbed Mr Stoneham four times in the back of his neck using a makeshift knife Mr Vincent had fashioned for the purpose.  Four days before this occurred, there had been a confrontation between the two men in an exercise yard at the prison.  Mr Vincent believed that Mr Stoneham was deliberately kicking a basketball at him.  There was a scuffle between the two men and punches were thrown.

2. Between 24 August and 28 August 2012, the two men were placed on separate management routines to avoid further confrontation.  On 28 August 2012, both were interviewed by a senior Corrections officer and, after assurances were received, the men were returned to their earlier routine in which they were managed together.

3. Later that day, Mr Stoneham was seated in the unit with…