Faulkner v R - [2016] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

CA604/2015
[2016] NZCA 315

BETWEEN	KEVIN CHARLES FAULKNER Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2016
Court:	Harrison, Simon France and Woolford JJ
Counsel:	A J Maxwell-Scott for the Appellant K S Grau for the Respondent
Judgment:	7 July 2016 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of three years and eight months’ imprisonment is upheld, but is made concurrent rather than cumulative on the appellant’s existing sentence.

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REASONS OF THE COURT

(Given by Woolford J)

Introduction

On 29 August 2014, Kevin Charles Faulkner was arrested and charged with aggravated robbery, conspiracy to possess materials for the manufacture of methamphetamine and the manufacture of methamphetamine. On 20 August 2015, he pleaded guilty to an amended charge of injuring with intent to cause grievous bodily harm. The other two charges were dismissed. On 11 September 2015, he was sentenced to three years and eight months’ imprisonment cumulative on an existing sentence upon which he had been recalled following his arrest on the original three charges.[1] He now appeals against sentence on the basis that it is manifestly excessive.

Factual background

[1]R v Faulkner [2015] NZDC 18067.

On 27 August 2014, Mr Faulkner arrived at the Helensville address of the victim. He was a regular visitor to the address and on this occasion he was again invited inside. He had with him his new wife and her friend, both of whom were sex workers. During the course of the visit, his wife informed him that the victim had propositioned her for sex. He left the address with the two women and took them to his car and then returned to confront the victim. He then assaulted the victim over what appears to have been a prolonged period. The victim was initially assaulted in his house. When he ran off he was followed by Mr Faulkner on to the driveway where the assault continued. Defence counsel accepted that the attack was “frenzied and violent”. It was also accepted that it was a sustained attack.
The victim received a laceration to the back of his head requiring six stitches and had abrasions to his head, neck and leg. Having sought hospital treatment the victim was treated and discharged after a couple of hours. The defence asserted that there were no kicks to the head and that the head injury must have been as a result of punches and/or falls and/or being pinned to the ground, facts which were accepted for the purposes of sentencing.

District Court sentence

Judge David J Harvey characterised the assault as follows:
[3] No weapons were involved, but it was a very violent attack of a frenzied nature. It involved injuries and an attack to the head and it also involved injuries to other parts of the body. Whether or not there were kicks to the head is difficult to determine and it is contested by Ms Maxwell-Scott that that, in fact, happened.…

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 Faulkner v R

Details

AGLC: Faulkner v R [2016] NZCA 315
Case: [2016] NZCA 315
Decision Date: 7 July 2016 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kevin Charles Faulkner, the appellant, appealed against his sentence of three years and eight months’ imprisonment, which was imposed following his guilty plea to injuring with intent to cause grievous bodily harm. The appeal was heard by Harrison, Simon France, and Woolford JJ. The appeal was based on the ground that the sentence was manifestly excessive. The appeal was allowed, and the sentence was upheld but made concurrent rather than cumulative on the appellant’s existing sentence.

The legal issues the Court was required to decide were whether the starting point of five years’ imprisonment was appropriate, whether the guilty plea discount was sufficient, and whether the discount for time spent on recall was sufficient. The Court was also required to determine whether the sentence imposed was cumulative or concurrent on the appellant’s existing sentence.

The Court found that the starting point of five years’ imprisonment was appropriate, given the prolonged and gratuitous violence, an element of premeditation, and an attack on and injury to the victim’s head. The Court also found that the guilty plea discount of 18.5 per cent was sufficient and that the discount for time spent on recall was insufficient. The Court found that the sentence imposed should be concurrent rather than cumulative on the appellant’s existing sentence, as a concurrent sentence would be fairer and more proportionate to the offending. The Court held that a cumulative sentence would result in the appellant being immediately eligible for parole, which was disproportionate to the offending. The Court further held that the imposition of a cumulative sentence did not allow for a consideration of whether the total period of 25 years and 11 months’ imprisonment was wholly out of proportion to the gravity of the overall offending.

In conclusion, the Court allowed the appeal and upheld the sentence of three years and eight months’ imprisonment but made it concurrent rather than cumulative on the appellant’s existing sentence. This decision was based on the Court’s view that a concurrent sentence was fairer and more proportionate to the offending and eliminated any disproportionality.

Orders