Jahnke v The King

[2024] NZHC 3093

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000090

[2024] NZHC 3093

BETWEEN

MARTIN WERNA JAHNKE

Appellant

AND

THE KING

Respondent

Hearing:

17 October 2024

Appearances:

M E Jenkins for Appellant

B M Bosomworth for Respondent

Judgment:

24 October 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 24 October 2024 at 11.00 am

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ……………………..

JAHNKE v R [2024] NZHC 3093 [24 October 2024]

Introduction

[1]This is an appeal against sentence.

[2]        In the District Court, the appellant pleaded guilty to the following four charges, following a resolution agreement between the Crown and defence:

(a)Injuring with intent to cause grievous bodily harm x 2;1

(b)Strangulation;2 and

(c)Kidnapping.3

[3]        The District Court Judge adopted a starting point of six-and-a-half years’ imprisonment for all of the offending. He then allowed the following discounts:

(a)10 per cent for early guilty plea;

(b)20 per cent for background factors;

(c)20 per cent for rehabilitation and remorse;

(d)Five months’ discount for time on EM bail; and

(e)Three months’ discount for totality.

[4]The end sentence imposed was two years and seven months’ imprisonment.

[5]        The appellant contends that the end sentence was manifestly excessive. It is said that the starting point adopted was too high and that the discounts for remorse and rehabilitation were too low.

1      Crimes Act 1961, s 189(1); maximum penalty: 10 years’ imprisonment.

2      Crimes Act, s 189A(b); maximum penalty: seven years’ imprisonment.

3      Crimes Act, s 209; maximum penalty: 14 years’ imprisonment.

Factual background

[6]        In September 2022, Mr Jahnke was in the company of Mr Adam Lord, his co- offender. They drove to the victim’s address in Kaikohe. They had earlier stopped at the address of an associate and had discussed whether the victim had stolen antiques from the associate.

[7]        Upon arrival at the victim’s address, Mr Lord advised he would speak to the victim about the stealing of the associate’s antiques. Mr Jahnke remained in the car.

[8]        Mr Lord walked into the victim’s house through the front door. He then confronted the victim in an aggressive manner, accusing him of stealing antiques and owing money to Mr Lord for firewood – claiming the victim had failed to pay an account of approximately $3,000. Mr Lord then ordered the victim to get into his vehicle. He intended to take him to the property of the antiques owner. However, the victim refused to get into the car. Mr Lord then threatened him. He then grabbed him by the arm and tried to pull him out of the house. The victim resisted. The victim then walked to a ranch-slider where he was grabbed by Mr Jahnke.

[9]        Both Mr Lord and Mr Jahnke then dragged the victim out of the house. The victim tried to run away. The victim was placed in a headlock and dragged back to the vehicle. He managed to struggle free. The victim then took possession of an axe to defend himself. However, at that stage, Mr Lord overpowered him and took the axe off him. Mr Jahnke then obtained a hammer that was sitting nearby. Mr Lord struck the leg of the victim with the blunt side of the axe before throwing it into the paddock. Mr Jahnke continued to assault the victim by punching him. Mr Jahnke struck the victim multiple times with the hammer. The victim was desperately trying to escape. Mr Jahnke got the victim into a choking hold and then gouged his eyes. Mr Jahnke then pulled him out of the seat and Mr Lord then dragged him outside again. The victim was again repeatedly kicked, punched, kneed, and assaulted by both offenders. The victim then made a plea to let him go. Mr Jahnke still had a hammer and then physically forced the victim into Mr Lord’s vehicle.

[10]      The victim was then placed in the vehicle. The victim then managed to hit the car horn to try and gain some attention. Mr Lord got out of the car and engaged with

witnesses who had heard and observed the beeping of the car horn. Mr Lord indicated to the witnesses that the person beeping the horn was on P and was being taken to a doctor.

[11]      The vehicle then drove off towards Kaikohe. Mr Lord, the driver, then momentarily lost control of the vehicle while travelling at speed. At that stage the victim opened the door of the car and threw himself from the moving vehicle.

Procedural history

[12]The appellant was originally charged with the following offences:

(a)Wounding with intent to cause grievous bodily harm;

(b)Injuring with intent to cause grievous bodily harm;

(c)Strangulation;

(d)Kidnapping; and

(e)Burglary.

[13]      At a sentence indication hearing in August 2023, the District Court Judge indicated a starting point of six years six months’ imprisonment for that offending, with a discount of 20 per cent for early guilty pleas.

[14]      As part of the subsequent resolution between the Crown and defence, the Crown agreed to withdraw the charge of burglary and reduced the charge of wounding with intent to cause grievous bodily harm to a charge of injuring with intent to cause grievous bodily harm. No substantive changes were made to the summary of facts.

Relevant legal principles

[15]      The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be

imposed.4 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.5 The focus is on the end sentence imposed, rather than the process by which it is reached.6

[16]      The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.7

[17]      Appellate courts do not indulge in mere tinkering with a sentence.8 The Court generally will not interfere with a sentence which is within the range that can properly be justified by accepted sentencing principles.

Analysis and decision

Issue (a) – Was the starting point too high?

[18]      The starting point adopted, namely six-and-a-half years’ imprisonment, was the same starting point that the Judge had adopted at the sentencing indication. The charges before the Judge at the sentencing indication were not the same as those upon which Mr Jahnke was ultimately sentenced. As noted, the Crown agreed to withdraw the charge of burglary and reduce the wounding with intent to cause grievous bodily harm charge to a charge of injuring with intent to cause grievous bodily harm.

[19]      The appellant submits that because the charges had reduced in seriousness, so too had the gravity of the offending. Accordingly, he says that the Court was in error in not adopting a lower starting point for the purposes of the actual sentencing.

[20]      I find that there is no merit to that submission. In terms of the actual charges for which the appellant was sentenced, the starting point of six-and-a-half years’ imprisonment was well within range. The sentencing indication, which in any event had expired by the time of sentencing (having been rejected by the appellant), is

4      Criminal Procedure Act 2011, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

6      Tutakangahau v R, above n 5, at [36].

7      Tutakangahau v R, above n 5, at [32].

8      R v Boyd [2004] 21 CRNZ 169 (CA) at [38].

ultimately of little relevance. In his decision, the District Court Judge correctly identified a number of significant aggravating features of the charges for which the appellant was sentenced. This was a case of serious violence. There was extended violence, multiple offenders, motive, vigilante justice, and the use of a weapon (i.e. an axe and a hammer). This was also a case of home invasion and there was some premeditation. The victim was kidnapped, strangled, and hit with a hammer. He has had ongoing problems arising from the violence.

[21]      The Judge correctly referred to the sentencing bands in the leading case of R v Taueki.9 He also acknowledged that the co-offender, Mr Lord, had been sentenced on the basis of a starting point of five years’ imprisonment. The higher starting point adopted for Mr Jahnke appropriately reflected his greater involvement and culpability in the offending.

[22]      I find that there was no error in the starting point adopted by the District Court Judge.

Issue (b) – Discount

[23]      The District Court Judge gave a combined discount of 20 per cent for both rehabilitation and remorse. On appeal, Mr Jahnke contends that separate discounts for these factors should have been given, with a discount of 20 per cent alone for rehabilitation. He says that a further 15 per cent should have been applied for his sincere remorse and willingness to engage with rehabilitation. On this basis, it is said that the inadequate discount resulted in a manifestly excessive sentence.

[24]      I reject those submissions. I find that there was no error in the approach taken by the District Court Judge. His Honour acknowledged the successful rehabilitative steps taken at the Grace Foundation and expressly accepted that there was an element of remorse. As Downs J noted in Snell v R,10 discounts of this nature are often matters of impression. The combined allowance given of 20 per cent was entirely orthodox and within range.

9      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

10     Snell v R [2022] NZHC 1627 at [74].

Conclusion

[25]I reject both grounds of appeal.

[26]      The end sentence reached, namely two years and seven months’ imprisonment, was within the range that can properly be justified by accepted sentencing principles. The District Court Judge was not in error.

Result

[27]The appeal is dismissed.

Andrew J