Vincent v R

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 27 May 2015
• Neutral Citation: [2015] NZCA 201
• Docket Number: CA870/2013
• Court: Court of Appeal
• Date: 27 May 2015

BETWEEN

Dean Michael Vincent

Appellant

and

The Queen

Respondent

[2015] NZCA 201

Court:

Randerson, Miller and Cooper JJ

CA870/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction and sentence of six years imprisonment — appellant was found guilty after a jury trial in the District Court (DC) on one count under s188(1) Crimes Act 1961 (CrA) of wounding with intent to cause grievous bodily harm — appellant and victim were inmates at a prison — there had been a scuffle several days earlier — appellant had then walked up behind the victim and stabbed him in the back of the neck — victim's injuries were not serious — the appellant said he believed the victim presented a risk of harm to his safety and his actions were a counter-attack — DC Judge refused to allow self-defence to be put to the jury describing it as “palpable nonsense” — jury had asked to see provisions of the Crimes Act 1961 (CrA) during its deliberations — jury had also asked how serious harm was to be defined under s188(1) CrA — whether self-defence should have been put to the jury — whether the jury should have been shown the provisions of the CrA — whether had given the correct answers relating to s188(1) — whether the Judge should have made allowance in his sentencing for the custodial context of the offending and its stresses and frustrations.

Held: It was not in dispute that, in certain circumstances, self-defence could be available where the defendant took pre-emptive action to defend himself or herself (or another) from a perceived threat ( R v Wan). While the imminence of the threat was not a distinct or separate requirement, the authorities emphasised that the imminence or immediacy of the threat was a factor to be weighed in assessing whether the defence was available. This was a question of fact and degree. Among other things, the opportunities available to the defendant to seek protection or adopt some other alternative course of action were to be considered. The defendant had to have seen himself or herself as under a real threat of danger and not merely believe there might be some future danger.

These limitations were important since, where the danger was uncertain, or could otherwise be averted, recourse should be had to other means of avoidance.

The trial judge had a gate-keeping function in determining when self-defence should be put to the jury. If there was a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self-defence, then the issue should be left to the jury. Otherwise, self-defence should be withdrawn from the jury. On the facts, the Judge acted correctly in withdrawing the plea of self-defence from the jury. V might have genuinely believed it was necessary for him to take the actions he did in the circumstances as he believed them to be. However, there had been no material conduct on S's behalf since the first scuffle that could have increased V's concerns that he was under imminent attack. His actions were more accurately described as retaliatory in nature. V had a range of options reasonably available to him other than taking the action he did.

Finally, V's actions in stabbing S four times in the neck could not possibly be seen as a reasonable or proportionate response to a perceived threat of attack from a basketball in the exercise yard.

In relation to the first and second jury questions, the Crown was entitled to bring a single charge under s188(1). In doing so, the Crown took the risk that the jury might conclude that the Crown had not proved its case beyond reasonable doubt. Juries were not informed of the penalty for the crimes at issue as there was a risk a jury might reach compromised verdict on the basis of the penalties rather than deciding whether the Crown had proved the essential ingredients of the charges before them to the standard required.

The Judge had misapprehended the true nature of the jury's third question. However the Judge was correct to point out that it was for the Crown to prove beyond reasonable doubt that V intended to cause really serious harm even if some lesser degree of harm than that actually occurred

There was no misdirection in the Judge's answer to the fourth question. Several points needed to be made in relation to s188. First, there had to be a connection between the harm caused and the intention required to be proved. Second, there might be an intention to cause grievous bodily harm but it was not necessary for the Crown to prove that harm to that level of seriousness actually resulted. Third, in determining what the defendant's intention was at the time of an assault, the jury had to decide two questions: what type of harm did the defendant actually intend and did that amount to really serious harm?

The focus of the first question was subjective in the sense that it was the defendant's actual intention that had to be determined. But the jury had to consider all the evidence including the nature of the assault and the acts and statements made by the accused before, at, or after the event. In doing so, the jury could draw appropriate inferences from the proven facts in deciding what the appellant actually intended and whether that amounted to an intention to cause grievous bodily harm. It was for the jury to determine this second issue on an objective basis.

The Judge correctly directed the jury that it was for the Crown to prove beyond reasonable doubt that V intended to cause really serious harm to S. The Judge also correctly directed the jury that it was for them to determine whether what V intended to do amounted to really serious harm. It was open to the jury on the evidence to conclude that the Crown had proved beyond reasonable doubt that V intended to inflict really serious harm.

Appeal against conviction dismissed.

For provocation to justify a lower starting point, there had to be serious provocation which was an operative cause of the violence and which remained an operative cause throughout the commission of the offence. There was no operative provocation at the time of the attack and no basis to find that V's actions amounted to excessive self-defence or something analogous to it.

However the Judge took a more serious view of the offending than was justified in all the circumstances. The offending fell within band 2 of the levels of culpability identified in the R v Taueki but it was at the bottom end of the five to 10 year range adopted. A starting point of five years imprisonment was appropriate.

Further the Judge ought to have made some allowance for several mitigating factors. The injuries were relatively minor and did not result in any permanent disability. Secondly, the Judge ought to have made some allowance for V's circumstances at the time of the attack. He had been in prison for at least seven years at the time of the offending and, as the Judge acknowledged, had become institutionalised. While his fears might have been irrational, it was evident they were genuinely held. Some allowance should have been made for the frustrations that inevitably arose where inmates were forced together in close quarters over lengthy periods of time with minimal periods allowed each day outside their cells.

An allowance of 6 months for these factors would have been appropriate, resulting in an end sentence of four and a half years imprisonment.

Appeal against sentence allowed. The sentence of six years imprisonment was quashed and a sentence of four and a half years imprisonment was substituted, cumulative upon all existing sentences.

Counsel:

R M Lithgow QC and N Levy for Appellant

J C Pike QC for Respondent

JUDGMENT OF THE COURT

• A The appeal against conviction is dismissed.

• B The appeal against sentence is allowed.

• C The 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	[1]
The circumstances of the offending	[3]
Mr Vincent's statement to the police	[7]
Mr Vincent's evidence at trial	[11]
Mr Pratt's evidence at trial	[14]
The ruling on self-defence	[15]
The summing-up	[17]
Did the Judge err in taking away self-defence from the jury?	[20]
Submissions	[20]
Self-defence — discussion	[24]
Taking away self-defence from the jury	[30]
The jury questions	[35]
Jury questions — discussion	[41]
First and second questions The third question	[41]
The fourth question	[45]
The appeal against sentence	[47]
The Judge's approach	[53]
Counsel's submissions on sentence	[53]
Sentence appeal — discussion	58
Result	[63]

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.

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

3 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...