R v Falke - [2017] NZHC 951

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-059-000061 [2017] NZHC 951

THE QUEEN

v

JAN LUKAS FALKE

Hearing: 11 May 2017

Appearances:

C E R Power for Crown
R P Eagles for Defendant

Judgment:

11 May 2017

SENTENCING NOTES OF DUNNINGHAM J

[1]      Mr Falke, you are here for sentencing today on the following charges: (a)     driving with excess breath alcohol;
(b)      being an unlicensed driver failing to comply with a prohibition; (c)    threatening to kill;
(d)      male assaults female; and

(e) dangerous driving.

I expressly record that the charge of attempted murder has been withdrawn. I
understand from your lawyer that it is of some importance that it is put on the record for the benefit of your family back in Germany.

R v FALKE [2017] NZHC 951 [11 May 2017]

Background

[2] The background to this offending was that you were in a relationship with the victim who, like you, is a young European travelling around New Zealand. The relationship began in mid 2016, but then you parted company. During the time you and she were separated, your victim had a brief relationship with another man. It seems that you became consumed with jealousy over this, even though the two of you got back together in November 2016.

[3] On the day of the events which led to these charges, you, the victim and another couple were at a campsite near Clyde and were drinking. You got upset when she travelled into town with the other man. You then left the campsite but began sending numerous text messages to her in which you pressed your victim for details about that other brief relationship. You also said to her that she wanted to spend time with other people and not with you, and that there was “no point any more” as she had broken your trust. She sent texts to you saying that she loved you; to come back and, in response to you saying “I just want to die”, she said “don’t do it”. You then told your victim to look at Facebook and Whatsapp where you had posted photographs of your cut and bleeding arm. When she sent text messages telling you to stop it, that she loved you and not to hurt her so much, you responded with messages such as “good luck in your life”, and “see you [in the] next life then”.

[4] At around 8.00 pm, you came back to the camp area, and you told the victim that you wanted to talk to her. She got into the front passenger seat of your van. You then reversed very fast, and drove quickly up the gravel road from the campsite and onto the road heading towards Cromwell. About 800 metres down the road you drove towards the wire barrier fence between the road and the drop off to Lake Dunstan. You yelled at her that you were going to kill them and she pleaded for you to stop. Using the palm…

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 R v Falke

Details

AGLC: R v Falke [2017] NZHC 951
Case: [2017] NZHC 951
Decision Date: 11 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Falke, heard by Justice Dunningham, involved Jan Lukas Falke being sentenced for a range of charges including threatening to kill, male assaults female, dangerous driving, and driving with excess breath alcohol. Falke, a young European man on a travelling journey in New Zealand, had a tumultuous relationship with a female victim, which resulted in a series of events leading to these charges. Falke had sent threatening text messages to the victim, drove recklessly towards a safety barrier while yelling threats at her, and physically assaulted her in the process. The court considered the aggravating factors of the offending, such as Falke's intoxication and the real danger he posed to the victim, as well as the mitigating factors including his young age, lack of criminal history, and remorse shown.

The legal issues that the court needed to address were determining the appropriate starting point for sentencing, considering the totality of the offending, and assessing the mitigating factors that could justify a discount to the starting point. The court found that the charge of threatening to kill, which carried the most severe penalty, was the appropriate starting point for sentencing. The court also took into account the other charges and the aggravating and mitigating factors in determining the overall sentence. Falke's early guilty pleas were acknowledged, and a discount was applied accordingly.

The court sentenced Falke to nine months' imprisonment for threatening to kill, with concurrent sentences of two months' imprisonment each for male assaults female, dangerous driving, and driving with excess breath alcohol. Falke was also disqualified from driving for a total of 18 months, with 12 months for dangerous driving and six months for driving with excess breath alcohol, to be served concurrently. The court did not order reparation for the damage caused to the safety barrier as Falke and his family had no funds to pay.

Orders