Bonfert v R - [2012] NZCA 313

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/2012
CA124/2012
[2012] NZCA 313

BETWEEN PETER BONFERT
Appellant

AND THE QUEEN
Respondent

Hearing: 12 July 2012

Court: Arnold, Potter and MacKenzie JJ

Counsel: C Muston for Appellant
D J Boldt for Respondent

Judgment: 18 July 2012 at 11 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The sentences of nine months’ and 14 months’ imprisonment are quashed and the following concurrent sentences are substituted:
(i)On the count of threatening to kill, a sentence of 16 months’ imprisonment.
(ii)On each the two counts of male assaults female, a sentence of six months’ imprisonment.
(iii)On the count of assault with a weapon, a sentence of three months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellant was convicted following trial in the District Court at Whangarei on four counts arising from incidents on 10 and 13 January 2011. He was sentenced on 25 November 2011 by Judge Duncan Harvey to nine months’ imprisonment for the events on 10 January and 14 months’ imprisonment for the events on 13 January, to be served cumulatively.[1] The appellant appeals against conviction and sentence.

Background

[1] R v Bonfert DC Whangarei CRI-2011-088-177, 25 November 2011.

The appellant and the complainant are both German nationals who had been living together in New Zealand since early 2009. They were originally romantically involved. That relationship ended, but they remained living together in the same house.
The Crown alleged that on 10 January 2011 an argument started between the two and the appellant started to verbally abuse the complainant. He pushed her onto the couch, sat on her and threatened to punch her. He then left the room. The two moved to another room. The appellant put his hands around the complainant’s neck. She lost consciousness and awoke finding the appellant giving her mouth to mouth resuscitation.
The Crown also alleged that on 13 January 2011 another argument broke out. The appellant picked up an office chair above his head, threatening to hit the complainant with it. He then threw it on to the floor. He then picked up a kitchen knife and said to the complainant “I could kill you”, in German. He then left the room and put the knife back. (The appellant’s evidence was he grabbed the knife because he found it behind the computer: as the complainant denied putting it there, he wanted to show her which knife he was talking about.)
The appellant was charged with five different counts for this alleged offending:
(a)male assaults female under s 194(b) of the Crimes Act 1961;
(b)either:
(i)disabling by rendering the complainant unconscious under s 197 of the Crimes Act; or
(ii)male assaults female under s 194(b) for placing his hand around her throat;
(c)assault with a weapon under s 202C(1)(a) for assaulting the complainant with the chair; and
(d)threatening to kill under s 306 of the Crimes Act.
The jury found the appellant…

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 Bonfert v R

Details

AGLC: Bonfert v R [2012] NZCA 313
Case: [2012] NZCA 313
Decision Date: 18 July 2012

CaseChat Overview and Summary

Peter Bonfert appeals against his conviction and sentence, arising from incidents on 10 and 13 January 2011. The appellant and the complainant were German nationals living together in New Zealand since early 2009. The Crown alleged that on 10 January 2011 the appellant verbally abused the complainant, pushed her onto the couch, sat on her, threatened to punch her and strangled her until she lost consciousness. On 13 January 2011, the appellant picked up an office chair above his head, threatening to hit the complainant with it. He then picked up a kitchen knife and said to the complainant “I could kill you”. The jury found the appellant guilty of threatening to kill, two counts of male assaults female and assault with a weapon. The appellant appealed against his conviction on the grounds that the Judge should have warned the jury that the complainant’s evidence could be unreliable because she was intoxicated when the alleged offending occurred and that the elements required by s 306 of the Crimes Act were not made out. The appeal against conviction is dismissed. The appeal against sentence was allowed as the Judge’s approach to sentencing had led to a sentence that was manifestly excessive. The sentences of nine months and 14 months’ imprisonment are quashed and the following concurrent sentences are substituted: 16 months’ imprisonment on the count of threatening to kill, six months’ imprisonment on each of the two counts of male assaults female and three months’ imprisonment on the count of assault with a weapon.

Orders