Blake v R - [2016] NZCA 82

IN THE COURT OF APPEAL OF NEW ZEALAND

CA432/2015
[2016] NZCA 82

BETWEEN	DAVID BLAKE Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2016
Court:	Wild, Miller and Winkelmann JJ
Counsel:	P M Keegan for Appellant M J Lillico and Y Moinfar for Respondent
Judgment:	23 March 2016 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Mr Blake appeals the minimum period of imprisonment, 16 years, imposed in connection with his life sentence for the murder of his 71 year old mother, Gwendoline Blake.[1]
[1]R v Blake [2015] NZHC 1714.
The sentencing Judge, Ellis J, found that s 104(1)(e) of the Sentencing Act 2002 applied because the murder was committed with a high level of brutality and callousness. That being so, she took 17 years as the starting point for the minimum period and deducted a year for Mr Blake’s guilty plea to arrive at 16 years. Mr Blake says that the crime was not sufficiently brutal, cruel or callous to engage s 104 and a lesser starting point ought to have been chosen. He also says that the discount given for the guilty plea was inadequate.

The facts

Sentencing proceeded on an agreed summary of facts. On 30 January 2015 Mr Blake had been drinking with friends. During the evening he returned to his mother’s home, where he was living in a caravan. The relationship between him and his mother was strained.
An argument developed. Mr Blake pulled the phone and power cable out of the wall socket. He struck his mother across the mouth with the back of his hand and delivered at least three forceful blows to her head, on one occasion using some kind of blunt object. Her nose was broken and extensive bruising was found on her forehead and on the sides and top of her head. Her arms and hands were also bruised.
The blows caused Mrs Blake to fall to the floor, where she lay on her back. Mr Blake then used a large kitchen knife to stab her three times: once to the base of her throat; once to her right eye socket, severing the optic nerve; and once to her left eye, penetrating a few millimetres. None of these wounds was immediately
life-threatening. Mrs Blake died because vomit obstructed her airways and her gag reflex did not respond.
Afterward, Mr Blake went to his neighbour’s house and told them that he thought he had killed his mother and had started digging a hole. A freshly dug shallow hole was later found by his caravan. He asked a male neighbour to come with him to check on his mother, and told the female neighbour not to say anything. The male neighbour called the police.
When the police arrived Mr Blake was waiting. He told the police: “my dad died, my missus left me, my mum was blackmailing me, then I killed her. I’m sorry I did that”. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blake v R

Details

AGLC: Blake v R [2016] NZCA 82
Case: [2016] NZCA 82
Decision Date: 23 March 2016 at 3.00 pm

CaseChat Overview and Summary

David Blake appeals against the minimum period of imprisonment, 16 years, imposed in connection with his life sentence for the murder of his 71 year old mother, Gwendoline Blake. The Court of Appeal of New Zealand dismissed the appeal. The appeal raises two legal issues: first, whether the murder was sufficiently brutal, cruel or callous to engage section 104(1)(e) of the Sentencing Act 2002; and second, whether the discount given for the guilty plea was inadequate. The Court of Appeal found that the murder engaged section 104(1)(e) of the Sentencing Act 2002 because of the brutality of the attack on a defenceless woman in her home, and the use of a weapon. The Court of Appeal agreed with the sentencing Judge, Justice Ellis, that the stabbing of the victim's eyes and neck were gratuitous acts that exhibited a callous intention to mutilate and disfigure. The Court of Appeal also found that the discount given for the guilty plea was orthodox and not inadequate. The Court of Appeal dismissed the appeal and confirmed the 16 year minimum period of imprisonment imposed by Justice Ellis.

Orders