Luke v The Queen - [2011] NZCA 150

IN THE COURT OF APPEAL OF NEW ZEALAND

CA715/2010
[2011] NZCA 150

BETWEEN PATRICK THOMAS LUKE
Appellant

AND THE QUEEN
Respondent

CA716/2010

AND BETWEEN FREDERICK WILLIAM THOMPSON
Appellant

AND THE QUEEN
Respondent

Hearing: 28 March 2011

Court: Arnold, Keane and Fogarty JJ

Counsel: J C Hannam for Appellant Luke
P M Keegan for Appellant Thompson
K A L Bicknell for Respondent

Judgment: 13 April 2011 at 11.00 am

JUDGMENT OF THE COURT

The appeal against sentence of two years, two months for injuring with intent to injure is dismissed.

REASONS OF THE COURT
(Given by Keane J)

In July 2010 Patrick Luke and Frederick Thompson went to trial in the District Court, New Plymouth, charged jointly with two violent offences on 24 October 2009 against their flatmate, S, at the home they then shared: wounding him with intent to cause him grievous bodily harm, then injuring him with that intent.
Before the Crown case closed the appellants pleaded guilty to a single lesser offence on an amended indictment, injuring with intent to injure. This was a very much less serious offence than those with which they were first charged. The original first count had carried a maximum penalty of 14 years’ imprisonment, the second a ten year maximum. The count to which they pleaded carried a five year maximum.
On 12 October 2010 the trial Judge, Chief District Court Judge Johnson, sentenced each of the appellants to the sentence they now appeal as manifestly excessive.[1] He first took a starting point of three years. Then, to take account of S’s contribution to the incident, he reduced that by three months to two years, nine months. Then, to credit each with his guilty plea, Judge Johnson reduced that lesser figure by 20 per cent, rounded off to seven months, to produce an end sentence of two years, two months imprisonment.
[1] R v Luke and Thompson DC New Plymouth CRI-2009-043-4591, 12 October 2010.
This appeal against sentence goes only to the extent of the discount for the guilty pleas. Each appellant contends that, according to this Court’s decision in R v Hessell,[2] which then still applied, they pleaded at the first reasonable opportunity. They were entitled, they contend, to a full one-third discount.

Amendment to indictment

[2] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.

The Crown case at trial, on the indictment as it was originally, so far as we have it, was that late on the evening of 24 October 2009, all three were at home together. They had been at a party and were drunk. They argued in the downstairs lounge. Mr Luke punched S to the head several times with a closed fist, and knocked him to the floor unconscious. That was the basis for the original first count, wounding with intent to cause grievous bodily harm.
Later, according to the Crown case, when S found himself upstairs on the floor of his bedroom, Mr Luke, after speaking of breaking his jaw,…

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 Luke v The Queen

Details

AGLC: Luke v The Queen [2011] NZCA 150
Case: [2011] NZCA 150
Decision Date: 13 April 2011

CaseChat Overview and Summary

Patrick Luke and Frederick Thompson appealed against the sentences they received for injuring with intent to injure their flatmate. The District Court had sentenced each to two years, two months imprisonment. The Crown had originally charged the appellants with more serious offences, but the appellants pleaded guilty to the lesser offence of injuring with intent to injure. The appellants contended that they pleaded guilty at the first reasonable opportunity, entitling them to a one-third discount on their sentence. The Crown argued that the appellants did not plead at the first reasonable opportunity, and were entitled to a 20 per cent discount. The Court of Appeal dismissed the appeal. The Court found that the appellants did not plead at the first reasonable opportunity and were not entitled to a one-third discount. The 20 per cent discount they received was close to the maximum the Supreme Court had countenanced for a guilty plea. The sentence imposed was proportionate to the appellants' eventually admitted offences.

The Court of Appeal found that the appellants did not plead at the first reasonable opportunity. The indictment was amended and the pleas entered during the Crown case, not during the defence case. The Court found that none of the three reasons for a full one-third discount applied. The complainant and other witnesses were not spared having to give evidence. The State was not spared the cost of trial. The appellants did not obviously exhibit remorse. The Court of Appeal found that the 20 per cent discount the appellants received was close to the maximum the Supreme Court had countenanced for a guilty plea. The Court found that the sentence imposed was proportionate to the appellants' eventually admitted offences. The Court dismissed the appeal.

Orders