Pukepuke v Police

[2014] NZHC 1194

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-20 [2014] NZHC 1194

BETWEEN

DANE PUKEPUKE

Appellant

AND

POLICE Respondent

Hearing:	30 May 2014
Appearances:	R Vigor-Brown for Appellant N Tehana for Respondent
Judgment:	30 May 2014

JUDGMENT OF COOPER J

Solicitors:

R Vigor-Brown, Rotorua

Gordon Pilditch, Crown Solicitors, Rotorua

PUKEPUKE v POLICE [2014] NZHC 1194 [30 May 2014]

[1]      The appellant Dane Mark Pukepuke appeals against sentences imposed on him by Judge Weir in the District Court at Rotorua on 28 April 2014.1

[2]      The appellant had pleaded guilty to two charges of male assaults female and one charge of breaching a protection order.  The Judge convicted him and sentenced him to nine months’ imprisonment on the assaults, terms that were to be served concurrently, and a further three months to be served cumulatively in respect of the offence of breaching the protection order.

[3]      The Judge fixed the starting point for the two assaults at nine months’ imprisonment.  In doing so he specifically said that he was dealing with him on a “totality basis”.   He uplifted the starting point by three months so that it reflected both charges, and also the appellant’s previous history of offending.  He then reduced the sentence by three months to acknowledge the guilty pleas, although the plea of guilty was clearly not made at the first available opportunity on the assault charges.

[4]      The  Judge  treated  the  breach  of  protection  order  separately.    He  took  a starting  point  of  four  months’ imprisonment,  which  he  again  reduced,  to  three months to acknowledge the guilty plea.   He directed that the sentence be served cumulatively.

[5]      Consequently,  there  was  an  effective  term  of  imprisonment  for  all  three charges of 12 months.

[6]      The Judge noted that there were a number of concerning facts about the offending, as disclosed in the summary of facts.   In his sentencing remarks he highlighted that there were two quite separate events giving rise to the charges of male assaults female that occurred respectively on 13 October and 12 December

2013.

[7]      It seems to me that these observations by the Judge were well justified by the summaries of facts before him.

1      New Zealand Police v Pukepuke DC Rotorua CRI-2014-063-000019, 28 April 2014.

[8]      On Sunday 13 October the appellant and the victim had organised a gathering for his birthday at their home.  When the appellant woke up that day he swore at the victim and told her to get up and cook for everyone (expletives deleted).  He pulled the blankets off her then lunged towards her and punched her once in the head above the left eye.  She left the house and crawled underneath the deck hiding there until the police arrived.  She received a large haematoma on her forehead above her left eye as a result of that incident.

[9]      Next, on Thursday 12 December, the appellant and the victim were at home together.   A verbal  argument  developed  as  a  result  of  which  she left.    Shortly afterwards the appellant located her but she left from the place she was then in and returned home.  The appellant had already arrived and began to push and pull her around the house while directing verbal abuse at her. According to the summary this caused her to fear for her life if she remained.

[10]     Insofar as the protection order breach is concerned the summary of facts stated that on 27 January 2014 the appellant arrived at the victim’s home address, which was in fact a house that both owned together.  One of the conditions of bail to which the appellant was then subject on the outstanding charges of male assaults female, was that he not go to the address or contact her. The victim however allowed the appellant to stay there for a number of days.

[11]     In early February the appellant asked her to swear an affidavit dropping the charges against him.  This she refused to do.  The appellant then yelled at her stating that she needed to withdraw the charges.  She refused to do so.  Later that day he indicated that he wished to take some items from the house and she referred to a Court Order which prevented him from doing so.  At this he pointed at her and said in an intimidating manner, “I better got all my belongings back or you know what I’ll do  to  you Rachel”.   This caused her to feel intimidated and scared by  the appellant’s actions and no doubt the past recent history was part of the reason for her concern.

[12]     The appellant has a substantial number of previous convictions. Although the more serious offending is historic.  There were convictions for rape, unlawful sexual

connection  and  assault  with  intent to  commit  rape for which  the appellant  was sentenced to effective terms of 10 years 11 months in 1993.

[13]     More recently there is an aggravated robbery committed with a firearm for which the appellant received a sentence of two years nine months in 2007.

[14]     In support of the appeal, Mr Vigor-Brown submits that the Judge should not have  imposed  the  sentence  of  three  months’  imprisonment  for  breach  of  the protection order on a cumulative basis and argues that the result of doing so was a sentence  that  was  manifestly  excessive.    He  contends  that  a  more  appropriate effective sentence would have been one of eight months.

[15]     He also submits effectively that the second assault was something that should have been dealt with with a lesser charge, submitting that the offending on that occasion was less serious.  He submits that this has contributed to the excessive final sentence which he maintains has been imposed.

[16]     Mr Vigor-Brown also  notes  that  following the  appellant’s  release on  the aggravated robbery charge there has been no offending until the present charges arose, apart from a breach of a release condition in 2010.  He rebuts the suggestion which is made in a letter which was written by the victim that the offending before the Court was induced by consumption of methamphetamine and refers to the fact that the appellant has a supportive employer.  He also notes that at the time of the breach of protection order charge the victim had allowed the appellant to stay at her house for a number of days when the offence was committed.  Mr Vigor-Brown also notes that in prison the appellant has been undergoing anger management courses and has completed four out of 12 allocated sessions.

[17]     Overall he submits that the effective sentence imposed here was manifestly excessive.

[18]     Ms Tahana, for the Crown, submits that the fact that the breach of protection order occurred later in time and involved behaviour that was different in kind to that which was the subject of the assault charges justified the imposition of a cumulative

sentence.   I accept that submission.   Section 84(1) of the Sentencing Act 2002 provides that cumulative sentences of imprisonment will generally be appropriate if the offences for which an offender has been sentenced are different in kind (which is the case here) whether or not they are a connected series of offences.  Consequently, the fact that the offending might be described as representing various staging posts in a  relationship  as  it  broke  down  is  not  sufficient  to  require  the  imposition  of concurrent charges.

[19]     The issue is, of course, whether seen in their totality the sentences imposed have resulted in a sentence that is manifestly excessive.  I do not consider that is the case, essentially for these reasons.

[20]     First, there were two charges of male assaults female each of which carried a potential maximum penalty of two years’ imprisonment.  The starting point of nine months adopted in respect of the first of those charges was in my view justified bearing in mind the circumstances which lay behind it.  The Judge adopted a starting point of nine months in respect of the second offence.   Mr Vigor-Brown says that this in itself was excessive.   It may be that the second offence justified a lower starting point, but in the end I am not persuaded that the starting point adopted has had  the  effect  of  making  the  overall  sentence  imposed  an  excessive  one.    In particular that is because the Judge directed that the sentences on the two charges of male assaults female be served concurrently.  And in fact, bearing that in mind he added only an increment of three months, the 12 month term was appropriate to reflect the overall offending in respect of both charges.

[21]     The increment also served, at least to some extent, to reflect the appellant’s history of offending.  The sentence imposed cannot be characterised as excessive and the effect of the nine months’ starting point for the second offence on the overall outcome has been slight.

[22]     Second, the reduction of 25 percent for the guilty plea was generous.  It was the maximum amount allowed for in terms of Hessell v R2  and indeed seems more

2      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

generous than a strict application of the principles set out in that decision would allow because it was plainly not made at the first available opportunity.

[23]     Third, the threatening behaviour for which the appellant was responsible in the circumstances giving rise to the breach of protection order charge was made more serious by the fact that that offending occurred while the appellant was on bail. It contained an implied threat of further violence against the background of the violence that was already the subject of the existing charges.

[24]     Once again the maximum penalty was two years’ imprisonment.  In all the circumstances  the  four  months’ starting  point  which  the  Judge  adopted  for  this offence could not be criticised. A full discount for the guilty plea was again given.

[25]     I have not been persuaded that the overall sentence was manifestly excessive and consequently the appeal is dismissed.