In the Court Of Appeal of New Zealand
CA252/2010
[2010] NZCA 540

BETWEEN	ANARU TEREI TAMATI RANGIHUNA
Appellant

AND	THE QUEEN
Respondent

CA253/2010

AND BETWEEN	NATHAN FINCH LEWIS
Appellant

AND	THE QUEEN
Respondent

Hearing:	10 November 2010

Court:	Stevens, Gendall and Cooper JJ

Counsel:	J R Rapley for Appellant
S B Edwards for Respondent

Judgment:	22 November 2010 at 3.30 pm 

JUDGMENT OF THE COURT	
The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1]	Anaru Terei Tamati Rangiuhuna and Nathan Finch Lewis were both convicted of a charge of wounding with intent to cause grievous bodily harm following a trial by jury in the District Court before Judge Neave.  Mr Lewis was also convicted of two further charges, namely, possession of a pistol and threatening to kill.  Mr Rangihuna was sentenced to a term of imprisonment of six years and six months.  Mr Lewis was sentenced to a term of imprisonment of seven years and three months.
[2]	Both of the appellants appeal against their conviction on the wounding charge on the ground that the Judge’s summing up gave rise to a miscarriage of justice.  They submit that in summarising the defence case the Judge presented contrary arguments of his own and made comments which unfairly undermined the defence position.  In short, their counsel, Mr Rapley, contended that the Judge “crossed the boundary into impermissible lack of balance”.
[3]	The appeal against sentence on the wounding charge is on the basis that the Judge erred in his assessment of aggravating features of the offending and wrongly determined that it fell at the lower end of band two of R v Taueki warranting a starting point of six years and six months imprisonment.  Counsel for the appellants submits that the offending is properly characterised as band one and that the starting point should have been no more than five years imprisonment.  Further, in the case of Mr Lewis, the cumulative sentence of nine months imprisonment imposed for the offences of threatening to kill and possession of a pistol ought to have been concurrent with the sentence on the wounding charge.
Factual background
[4]	The charges arose out of a violent attack on a neighbour who was lured onto the appellants’ property on Baker Street in Christchurch, detained within the property and then attacked in various ways including, as the Crown alleged, by a bull mastiff dog used as a form of weapon.
[5]	On 19 September 2008, the neighbour saw Mr Lewis approach his house and make a throat-slitting gesture towards him.  There had previously been difficulties between the appellants and various neighbours (including the complainant) because of noise, burnouts and other boy-racer-type activities emanating from the appellants’ house.  Mr Lewis invited the neighbour onto the appellants’ property.  The neighbour followed him, hoping that they would be able to talk about the difficulties.  Once the neighbour was inside the gates, an associate closed them.  Mr Lewis punched the neighbour three times in the head.  The neighbour stumbled and picked up a brick, at which point Mr Lewis struck him on the head several times with a piece of plastic pipe.  Mr Lewis wrestled him to the ground and hit him twice in the back with the brick, which Mr Lewis had got off him, and strangled him.
[6]	The next part of the narrative is the subject of conflicting evidence.  The Crown case was that Mr Lewis shouted to Mr Rangihuna to “get the dog”.  Mr Rangihuna brought out a large bull mastiff and the two encouraged the dog to attack the neighbour as they held him down on the ground, Mr Lewis continuing to punch the neighbour in the head as he did so.  Eventually they pulled the dog off, allowed the neighbour to stand and told him to “fuck off”.  As the neighbour left, the associate hit him on the head with a metal torch.  Mr Lewis shouted to the neighbour that if he called the police, he would shoot him.
[7]	The neighbour suffered serious injuries including a badly lacerated arm, loss of muscle tissue, and bruising and cutting to his face.  He required surgery and spent a week in hospital.  When the police executed a search warrant at the property two days later, one of the occupants of the house threw a loaded pistol over the fence in an attempt to conceal it from the police.
[8]	The appellants and an associate were charged with wounding with intent to cause grievous bodily harm, unlawful possession of a pistol and kidnapping.  Mr Lewis faced an additional charge of threatening to kill.  The associate was also charged with assault with a weapon and pleaded guilty to possession of a pistol.  All three were discharged under s 347 of the Crimes Act 1961 on the kidnapping count.
The key issue at trial
[9]	In relation to the wounding charge, one of the key issues at trial was how the bull mastiff dog came to attack the neighbour.  This was a relatively narrow, purely factual, issue.  The neighbour’s evidence was that Mr Lewis, having embarked on the initial assaults, told Mr Rangihuna to get the dog which Mr Rangihuna did, bringing it around from the back of the property.  Then Mr Lewis encouraged the dog to attack the neighbour while he was lying face down on the ground.
[10]	Counsel for both appellants cross-examined the neighbour as to how he could have seen Mr Rangihuna run to get the dog when his face was in the sand, and whether the neighbour’s evidence of hearing the dog’s chain was consistent with it being leashed or running free.  Mr Rangihuna gave evidence that he was asleep when his partner woke him to tell him that Mr Lewis was in a fight with someone outside.  He dressed and ran outside to find the dog attacking the neighbour, and grabbed it and pulled it away.  Mr Lewis did not give evidence but his trial counsel Mr Shamy, pressed the neighbour that he was not physically in a position to have been able to observe that Mr Rangihuna fetched the dog and brought it to attack the neighbour.
[11]	The defence case was that the dog, having been tethered at the front of the property, broke free and came around to where Mr Lewis was assaulting the neighbour.  Thus there was an issue as to whether the dog could have broken free.  There were at least two dogs on the property at the time and the neighbour gave evidence that prior to leaving the property he patted another dog that was tethered to some nails to the front of the house on his way out.  When the police arrived to execute the search warrant, there was a dog tethered to the front of the house which broke free and ran inside after one of the officers shot it.  The defence case was that the dog that attacked the neighbour was similarly tethered to the front of the house and broke free to attack the neighbour as he fought Mr Lewis, and was then pulled off by Mr Rangihuna.
Judge’s summing up on wounding charge
[12]	Early in the summing up, the Judge identified the key factual issue for the jury.  He said that the jury would “be required to consider whether you accept beyond reasonable doubt  and depending on what you accept does that prove that Mr Rangihuna and Mr Lewis have wounded [the neighbour] with the necessary intent”.
[13]	The Judge used the formulation set out in the Judges’ Bench Book to emphasise that the jury had the sole responsibility for deciding all questions of fact.  He commented that it was for the jury to decide what it would accept and what evidence it would reject.  Further, matters of weight were for the jury.  He then said:
If I appear to indicate any view of the evidence or any view of a witness, and that does not accord with your own view, you should immediately put mine in the ‘dustbin of history’ because of course it is your view that counts and not mine, not counsel, not anybody else’s.
[14]	The Judge returned to the key issue again as follows:
Counts 1 and 3 it seemed to me depend entirely on whether or not you accept [the neighbour’s] evidence.  There is no dispute that he was bitten by the dog.  Equally I do not understand anybody to be disputing that if he was bitten by the dog as the result of a deliberate act by the accused, then the charge is going to be established, but what is being said here is, is it reasonably possible that the dog effectively slipped its security chain and joined in of its own bat, rather than because of some deliberate actions on the part of one or more of the accused.  You have heard of course a good deal about what [the neighbour] did or did not see, or could or could not see from his position.  To a certain extent you are obviously going to have to take that into account, but I suspect you may be assisted, and this is a matter entirely for you, in discussing those issues if you ask yourself am I satisfied beyond reasonable doubt that Mr Lewis said, “get the dog, get the fucking dog” followed by the attack and then the later urging on, I think the words were “get him, get him”.  At no stage has anybody suggested that this meant the dog was on the loose and Mr Lewis was urging someone to catch the dog so it did not cause danger, but that is a matter you will have to take into account.  It certainly was not suggested by Mr Lewis and it may be you consider it inconsistent with his position in respect of [the neighbour], his actions both leading up to the attack and in the days leading up.  Those are all matters you will have to take into account, but if you take the view that you are satisfied beyond reasonable doubt that there was this urging on of the dog, then you will no doubt use that as you see fit in determining whether or not it is reasonably possible that the dog ‘accidentally’ got involved in the fray.
[15]	The Judge then took the jury carefully through the factual issues in the issue sheet.  In the context of the wounding charge, there is no dispute that he identified the correct elements and factual questions for determination by the jury.  Later, the Judge returned to the topic of the neighbour’s evidence, no doubt because of its centrality to the wounding charge.  He directed the jury as follows:
In coming to your conclusions on these matters you are going to have to take into account the evidence of [the neighbour].  I have already mentioned something about that.  Essentially if you take the view it is reasonably possible that the injuries that [the neighbour] sustained were as the result of some accident in the sense of the dog slipping its leash, then the accused will be not guilty.  You are only going to be able to find either or both of them guilty if you are satisfied beyond reasonable doubt that the dog’s involvement was as the result of the deliberate act of the accused.
Mr Rapley of course challenged [the neighbour] on who he saw go and get the dog.  He of course has not challenged him on the comments that [the neighbour] described as having heard before that, and of course that would be relevant in your assessment of what in fact did occur.  It was suggested by Mr Shamy to [the neighbour] that there was no request made for the dog, although he was not challenged about the urging of the dog on about which he gave evidence.  The challenge that Mr Shamy made to [the neighbour] was firmly rejected by [the neighbour].
It is for you to determine whether he is an accurate and reliable witness.  Bearing in mind it is always important to remember that an honest witness can be a mistaken witness and sometimes all the more powerful in their testimony because of their honesty.  You are required to make a double assessment in looking at whether or not you accept a particular witness’s evidence.  The first thing you have to ask yourself is whether they are being honest with you.  Obviously if they are not being honest you are not going to be able to place any or a great deal of weight on what they tell you.  The second question, which is not necessarily connected at all to the first, is are they also an accurate witness.  In other words are they telling you what in fact happened as opposed to what they now think happened, or have convinced themselves has happened or something like that.  To a certain extent I think that is the defence’s case, that [the neighbour] has convinced himself of things that he did not did not see [sic].  Both Mr Rapley and Mr Shamy were extremely critical of his evidence, and in particular the question of how the dog came to him and who brought it over.
Mr [Shamy] took you through what he described as something like eight versions I think of [the neighbour’s] evidence.  I am not sure that it is quite fair to put it in that way because it is certainly possible, and it will be for you to determine, whether this is the case, that he was in effect saying the same thing but in slightly different ways.  Mr [Shamy] does go on to say that it is not clear whether [the neighbour] saw Mr Rangihuna bring the dog back, or whether this was an inference or an assumption based on the things that he heard or saw.
[16]	The Judge then directed the jury on inferences.  Again there is no criticism of this part of the summing up.  When directing on inferences, the Judge referred to the neighbour’s evidence as follows:
... You are of course entitled to take the view that he was being quite clear about it, that he saw at the very least Mr Rangihuna walk away when the request was made for the dog and that he came back and at least hears the dog and that he saw jeans which he describes as Mr Rangihuna’s (and he was not challenged on that) and that the evidence was that [the associate] was not doing very much and there is no evidence of anybody else being there or thereabouts.  It would be for you to determine whether you accepted that it was in fact Mr Rangihuna.  You are of course, if you take the view that you believe that [the neighbour] is being honest and accurate, that he did not see the whole transaction.  Those are factual questions for you and you alone.
Before you can come to the conclusion that he did in fact see that, Mr Rangihuna as it were go and come back with the dog, you would have to be satisfied that he could and did see what he tells us, given the position he was on the ground, his right side in the dirt, and you will remember the evidence about him being choked and having his eyes gouged by Mr Lewis.
The challenge to the summing up
[17]	Mr Rapley for both appellants takes issue with the Judge’s summing up.  He was particularly critical of the passages of the summing up dealing with the defence case.  Mr Rapley submits that the Judge departed from the usual structure of summarising each side’s case on each point and instead adopted a structure whereby the Judge put the defence case to the jury and then countered it with counter-proposals or answers that were the Judge’s own, rather than the Crown’s.  Mr Rapley contends that at no point did the Judge preface his counter-proposals or answers with a reference to the Crown case or Crown submission, or otherwise make it clear that he was putting the Crown case to the jury rather than his own thoughts.  This can be contrasted to the Judge’s fairer treatment of the arguments on the possession of the pistol charge.  He submits this was unfortunate as there was a risk that the jury might think that the answers to the defence case were more persuasive as coming from the Judge.  Thus the effect was unfairly to undermine the defence case, namely that the dog broke free and attacked of its own accord.
[18]	Mr Rapley further submits that parts of the summing up were unfair or inaccurate and this had a similar undermining effect.  For example, he objects to the Judge’s statement about the neighbour’s evidence as to what Mr Lewis said before and during the dog attack.  The neighbour said that Mr Lewis said “get the dog” and once the dog was there, “get him, get him” to egg the dog on.  The Judge said that there were no suggestions that the dog was on the loose and Mr Lewis was telling the others to catch it, but in fact trial counsel for Mr Lewis had made that very suggestion.
[19]	Mr Rapley gave a number of examples of alleged unfairness.  One was the comment by the Judge that there was no evidence of the dog having broken free from the nail and that the jury should not speculate.  The defence case was that this was a possibility, that a dog had broken free when the police arrived, and the Judge’s comment was unfair.  Mr Rapley accepted that this point had been put to the Judge immediately after the summing up.  He also agreed that the matter was partially corrected in the supplementary direction regarding the lack of any physical evidence to show that the dog had broken free.
[20]	In summary, Mr Rapley says this is an unusual case.  He accepts that the Judge put the defence case to the jury in some detail.  But in doing so, the Judge made responsive comments of his own and in such a way as to affect the overall fairness and balance of the summing up.
The respondent’s position
[21]	Ms Edwards for the Crown defends the fairness and balance of the summing up.  She submits that a summing up does not need to follow a set pattern or formula.  She submits the Judge used an appropriately less formal structure which referred to the individual participants by name instead of labelling everything as Crown or defence theory.  The neighbour’s evidence was the Crown case.  The Judge presented it to the jury as being a question of whether and to what extent they believed the neighbour, and emphasised from the outset that the jury was the trier of fact and to put aside any of the Judge’s views on the facts.
[22]	Ms Edwards submits that it is not an appropriate comparison to consider the summing up on the wounding charge against that on the possession of a pistol.  The latter charge involved evaluating circumstantial evidence and drawing inferences rather than an issue of credibility.  Nor was anything the Judge said unfair.  Contending that the dog broke loose was always going to be difficult for the defence and it was not unfair for the Judge to suggest that whether Mr Lewis said “get the dog” and “get him” were highly relevant.  Likewise, the Judge’s comments on what trial counsel did and did not ask were accurate.  Finally, with regard to the complaint that the Judge countered the defence case with his own counter-propositions, this is not unfair per se.  The Judge was entitled to express his own view, particularly when he felt that some balance or clarification was needed.  Considering the summing up in its entirety, the defence case was fully and fairly put to the jury.
Discussion
[23]	A Judge is not obliged to recite every submission made by defence counsel.  As this Court said in R v Shipton, there are limits to a Judge’s duty to put the defence case before a jury.  The Judge’s duty is to summarise the nature of the defence and “squarely put [it] through his office by summarising the nature of the arguments and the evidence”.
[24]	Here there is no doubt, that the defence of both appellants was put to the jury.  But what made the summing up problematic was that when the defence was put, the Judge added commentary and offered his own views by way of rebuttal on a number of occasions.
[25]	Mr Rapley relied in particular on dicta from two judgments of this Court.  First, he cited the following observations from R v Edmonds:
... it would have been preferable for the Judge to make any editorial comments about the respective cases separately from his summaries of the Crown and defence positions.  The purpose of the summary of cases is to remind the jury of the way in which those cases were put by counsel and any “editorial” comment, at that stage, puts the summing up at risk of challenge on appeal.
[26]	Next, he referred to comments in R v Hodges.  There, Tipping J stated:
...  The Judge’s summary of the Crown’s case was substantially more analytical and convincingly presented than the case as advanced by counsel.  It was obviously not intended as an additional and more persuasive address for the Crown but in the particular circumstances that is how it must have come across.  There is a degree of unfairness to an accused whose counsel has already addressed the jury if the Judge presents the case for the Crown in a more cogent and intelligible way than Crown counsel.  Obviously, this will almost always be a matter of degree but in the present case the degree of difference was substantial.
[27]	We would add a reference to the following observation of this Court in R v Fotu:
Considered as a whole, the summing up leaves not the slightest doubt about what the Judge was putting forward as the only just, proper and correct verdict, although he was careful to say frequently that it was a matter for the jury.  A Judge is entitled to indicate his own views of the evidence, provided that as a whole the summing up is a fairly balanced and a fair presentation of the case to the jury (Broadhurst v R [1964] AC 441;  R v Ryan [1973] 2 NZLR 611).
[28]	In terms of balance and fairness therefore, the question must be whether the summing up read as a whole properly puts the respective cases to the jury, including both the arguments and evidence.  There can be no objection to a Judge making reasonable comments on the content of counsel’s submission or the evidence of either party, where explanation, clarification or amplification may be required.  We consider that this Court in Keremete aptly captured the approach:
The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.
[29]	The fact that the Judge did not follow the conventional model of summarising the Crown and defence cases in turn does not necessarily mean that the summing up is objectionable.  There is no obligation to outline the Crown and defence cases separately in a summing up.  At times it might be more helpful to the jury to refer to the competing contentions together when dealing with a particular aspect of the case.  We agree with the submission of Ms Edwards that the issues in relation to the wounding charge were straightforward and that the neighbour’s evidence was the Crown case, a point acknowledged by trial counsel for Mr Lewis in his closing address.
[30]	In the light of the above principles we have carefully considered the summing up to determine whether it crosses the line into imbalance and unfairness.  In this context we note in particular the statements of the Judge when dealing with Mr Lewis’ defence.  The Judge said that perhaps the neighbour “saw himself as ‘Wyatt Earp cleaning up Dodge City’ as far as Baker Street was concerned ...”.  This comment was made in relation to the neighbour being biased or predisposed to think the worst of the occupants of the neighbouring property.  We note that counsel did not use the descriptive expression attributed to him.
[31]	Almost immediately thereafter there was a reference to the neighbour not being prepared to allow himself to be intimidated.  The Judge then made a reference to a comment by Burke that “evil triumphs because good men do nothing”.  We agree with Ms Edwards  that such comments ought not to have been made.  In particular the quote from Burke was in the emotive category referred to in Keremete and would have been better avoided.  But both comments were made in the context of the need for the jury to make an assessment of the neighbour’s credibility and reliability – a key issue in the case.
[32]	When dealing with the submissions put forward by trial counsel for the appellants the Judge did, on several occasions, make further comments.  There was no prohibition on his so doing, provided that the comments were done fairly and with balance.  We agree with Mr Rapley that it would have been better had the Judge refrained from immediately countering many of the defence propositions while summarising the defence case to the jury.  But the test is whether the Judge put the defence case to the jury fully and fairly.  This is not something that can be assessed by focusing on isolated passages in the summing up.  Rather, the assessment must be of the directions as a whole. 
[33]	We are satisfied that the defence case was squarely put to the jury.  The neighbour’s evidence was the Crown case on this charge.  The Judge’s directions as to the neighbour’s honesty and accuracy as a witness were not challenged.  If the jury accepted the his evidence as to what he heard and saw, then the elements of the charge would be made out.  Any infelicities in putting the defence case to the jury were, in this context, unlikely to have had an unfair effect on the defence case.
[34]	Despite the comprehensive submissions advanced by Mr Rapley on behalf of the appellants, we are satisfied that the summing up was not such as to leave the case in a state of imbalance or otherwise create unfairness.  Where the Judge did comment, it was generally appropriate.  He was seeking to clarify the evidence, draw attention to other relevant matters and otherwise ensure that the jury had all necessary factors in mind when they came to weigh the evidence of the neighbour in relation to the wounding charge.  The way in which the Judge approached the summing up did not undermine the defence case.
[35]	For these reasons the appeal against conviction will be dismissed.
Sentence appeal
[36]	On sentence, Mr Rapley submits that the sentences were manifestly excessive because the Judge failed properly to apply to the wounding charge the guideline judgment in R v Taueki. 
[37]	In particular, he simply identified five aggravating factors and placed the offending in band two, rather than evaluating the seriousness of each particular factor and taking this into account, as is required by Taueki.  The factors the Judge identified were serious injury, use of a weapon (the dog), multiple attackers, vulnerability of the victim, and an element of sending a message to neighbours not to interfere in the appellants’ activities.
[38]	With respect to the seriousness of the neighbour’s injuries, Mr Rapley contends that the Judge double-counted.  He points out some degree of injury is inherent in a charge where grievous bodily harm is an element but that the appellants were charged with wounding with intent to cause grievous bodily harm, rather than causing grievous bodily harm with intent, so the injuries are certainly not as serious as those to which Taueki is frequently directed.  Likewise, Mr Rapley submits that the use of the dog as a weapon was overstated and notes that the Judge found the offending was not premeditated and simply escalated out of control.  With regard to the multiple offenders, Mr Rapley submits that this too was overstated as Mr Rangihuna played no role until told to fetch the dog.  He further submits that the neighbour, who was being held on the ground at the time of the dog attack, was not “vulnerable” in the Taueki sense of being at a disadvantage in terms of size or strength.  Likewise, there was no evidence to support the Judge’s finding that the appellants were sending a message to other neighbours.
[39]	While the Judge fairly acknowledged that the offending fell on the cusp of bands one and two, Mr Rapley submits that band two is appropriate for a concerted street attack, which this was not, and thus band one was appropriate.  With regard to Mr Lewis, he submits that the additional uplift of nine months to reflect the threat to kill and arms charge was too high.  Rather they were closely linked to the grievous bodily harm offending and should have been treated as such.
[40]	The Crown in response submits that the Judge’s application of Taueki was entirely appropriate.  It was open to the Judge to assess the injury as serious given the neighbour’s hospitalisation, three operations, significant scarring, muscle wastage, nerve damage and long-term effects on his quality of life.  The Judge properly had regard for the potential for disaster in using the dog as a weapon, especially since both appellants had commented that the dogs were dangerous.  Equally, the Judge correctly had regard to the role of Mr Rangihuna and the associate in shutting the gate and standing by, as well as the disparity in numbers.  We would add that it would have been much harder, if not impossible, for one person to conduct this attack.  It would be difficult simultaneously to hold the neighbour down,  get the dog and direct the dog to attack.
[41]	With regard to vulnerability, it is not confined to the pre-existing characteristics of the victim and may be situational.  Further, the Taueki list of aggravating factors is not exhaustive and in any case this could fall within stand over tactics or vigilante action.  In the case of Mr Lewis, the uplift was appropriate to reflect the additional criminality in those charges.
Discussion
[42]	We are satisfied that the Judge undertook the appropriate evaluative exercise in applying the relevant Taueki factors to reach a starting point of six years and six months imprisonment for the wounding charge.  There is no doubt in our view that five of the aggravating features identified in Taueki were present.  We agree with the submissions of Ms Edward as to the seriousness of the injuries inflicted by the use of the bull mastiff as a weapon.  We consider that the fact of multiple attackers being involved was relevant.  There was a clear disparity in the numbers.  Likewise we accept the vulnerability of the victim, particularly after the initial attack when he was on the ground.  This was a case of stand over tactics being meted out to a neighbour who was genuinely seeking to open a dialogue over recent neighbourhood difficulties.
[43]	The starting point chosen was, in our view, well within range and probably at the lower end of it.
[44]	Finally, we are satisfied that the Judge’s decision to impose a cumulative sentence of nine months imprisonment on Mr Lewis was appropriate to reflect the additional criminality involved in the offences of possession of a pistol and threatening to kill.  The imposition of a cumulative sentence is permissible under s 85 of the Sentencing Act 2002, bearing in mind the totality principle.
Result
[45]	The appeals against both conviction and sentence are dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent