Quentin Duane Pukeroa v The Queen - [2014] NZSC 27

IN THE SUPREME COURT OF NEW ZEALAND

SC 146/2013
[2014] NZSC 27

BETWEEN	QUENTIN DUANE PUKEROA Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, McGrath and Glazebrook JJ
Counsel:	R M Lithgow QC for the Applicant J E Mildenhall for the Respondent
Judgment:	26 March 2014

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Pukeroa seeks leave to appeal[1] against the Court of Appeal’s judgment of 18 July 2013, dismissing his appeal against his conviction for murder.[2] He also seeks leave to appeal with regard to sentence.
[1]The application for leave to appeal is out of time but no issue is taken with this by the Crown.
[2]Pukeroa v R [2013] NZCA 305 (O’Regan P, Miller and MacKenzie JJ).
In the High Court, Mr Pukeroa was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 15 years.[3] In setting the MPI at 15 years, the sentencing judge took into account the other offending of which Mr Pukeroa was convicted (attempted murder, injuring with intent to injure, participation in an organised criminal group and two counts of aggravated burglary).

Background

[3]R v Pukeroa HC Rotorua CRI-2009-063-697, 10 December 2010 (Wylie J).

The murder charge arose because Mr Pukeroa drove a utility through the front fence of the Herewini property, pursued the three Herewini brothers up the side of the house and ran over and killed the youngest of the three brothers, Mr Jordan Herewini. Jordan had tripped over a clothesline into the path of the vehicle.
The Crown alleged that Mr Pukeroa committed a culpable homicide by the unlawful act of using a vehicle as a weapon, deliberately driving at the Herewini brothers and with the intention to kill Jordan, injure Jordan (and was reckless as to whether death ensued) or kill Jordan’s brothers (or was reckless) with Jordan as the accidental victim.

Proposed conviction appeal

The grounds of the proposed conviction appeal are that there was hyperbole in the Crown closing address, that the way the case was put was overly complicated and that the Judge should have explained the path to a manslaughter verdict in a balanced manner (and should not merely have summarised the contentions of counsel).

Proposed sentence appeal

For the proposed sentence appeal, it is contended that s 23 of the Sentencing Act 2002 prohibits an uplift in the MPI from 10 years to 15 years. It is also submitted that the overall MPI is an excessive sentence, even if s 23 is not engaged.
Section 23 provides that “[n]o sentence of any kind may be imposed cumulatively on an indeterminate sentence of imprisonment.”

Court of Appeal judgment

Conviction

In the Court of Appeal it was suggested that the most obvious alternative to murderous intent was “crazy reckless driving” and an intention merely to chase and frighten the Herewini brothers, and that this would have led to a manslaughter verdict. On the evidence and having regard to the respective contentions of the parties,…

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.

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Details

Case: [2014] NZSC 27
Decision Date: 26 March 2014

CaseChat Overview and Summary

Quentin Duane Pukeroa appealed against his conviction for murder and the sentence imposed by the Court of Appeal. The Supreme Court was asked to consider whether leave to appeal should be granted. The Court of Appeal had dismissed Mr Pukeroa's appeal against his conviction and reduced the minimum period of imprisonment (MPI) from 15 to 13 years. Mr Pukeroa's grounds for appeal related to the complexity of the case, the summing up by the trial judge, and the Crown's closing address. He also argued that the MPI was excessive and that the increase from 10 to 15 years was in breach of s 23 of the Sentencing Act 2002. The Supreme Court found that the points raised on behalf of Mr Pukeroa did not create a risk of a miscarriage of justice, nor did they raise an issue of general importance. The Court was also not satisfied that the MPI was excessive. Therefore, the application for leave to appeal was dismissed.

The issues before the Supreme Court were whether the Court of Appeal had erred in its handling of the case and in the sentence imposed. Regarding the conviction, the Court considered whether the trial judge should have directed the jury on the possibility of a manslaughter verdict. The Court of Appeal had found that the trial judge was not required to do so. The Supreme Court agreed, finding that the defence position would have been undermined if the trial judge had directed the jury on the option of a manslaughter verdict. The Supreme Court also considered whether the summing up by the trial judge and the Crown's closing address had been inappropriate. It found that neither had been improper.

Regarding the sentence, the Supreme Court considered whether the increase of the MPI from 10 to 15 years was in breach of s 23 of the Sentencing Act. It found that it was not, as the increase reflected the totality of Mr Pukeroa's offending and was not a "cumulative sentence" within the meaning of s 23. The Supreme Court also considered whether the MPI (as modified by the Court of Appeal) was excessive. It found that it was not. The Court concluded that the application for leave to appeal should be dismissed as it was not in the interests of justice to grant leave.

Orders