R v Falke
[2017] NZHC 951
•11 May 2017
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 DefendantJudgment:
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I expressly record that the charge of attempted murder has been withdrawn.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 of your hand, you pushed her head forcefully into the side passenger door window two or three times causing her glasses to come off. You then failed to take a right hand bend and travelled off the road into the gravel. The front bumper struck a wooden post, forcing it from the ground. The van then straddled the top of the wire safety barrier and travelled approximately 145 metres down the barrier before stopping. At this point, your victim left the van and was
comforted by a passerby. You got a lift away from the site with a passerby. When police located you, you initially told them that it was the victim who had been driving. You were processed and found to have a breath alcohol level of
584 micrograms per litre of breath.
[5] The repairs to the wire barrier totalled $5,900 and an order for reparation for that amount is sought.
Overview
[6] I have heard submissions from both your lawyer and from the Crown. The Crown says that, although this is your first offending, a sentence of imprisonment is required, although the Crown does acknowledge that there should be a credit for your relative youth, your lack of prior convictions, and for your guilty plea.
[7] While your lawyer does not offer an alternative to prison, he suggests that a prison sentence which effectively represents time you have already served would be adequate, noting that you will be deported on your release. He also emphasises that your offending should be seen in the context of your youth and in the context of the tempestuous nature of this relationship.
Sentencing purposes and principles
[8] There are a range of purposes I have to consider in sentencing you today. These include holding you accountable for the harm you have done to your victim, promoting a sense of responsibility for and acknowledgement of that harm, providing for the interests of the victim, denouncing your conduct, and yet assisting in your rehabilitation and reintegration.
Victim impact statement
[9] You have heard the effect that this event has had on your victim, and, as I have already acknowledged, she showed a great deal of courage to come here today and to face you in Court and tell you how this has affected her. I think it is completely understandable that this has affected her ability to trust people, and has affected her confidence to continue her travels on her own. I would rather hope that
you now understand that what you have done has robbed her of what should have been a happy and memorable chapter in her life.
Starting point
[10] Because the offending all arises out of one related set of events, it is appropriate for me to take the most serious charge and sentence you in relation to that, and then uplift that sentence for the associated offending. Any sentences that I impose on the other charges will be served concurrently, which means you will serve them at the same time as the main sentence.
[11] The legal submissions differed on which charge I should take as the lead charge for the starting point. However, in my view, overall it does not matter much because I must indicate a sentence that reflects the totality of your offending. For the purpose of this exercise, I take the threatening to kill charge as the lead charge because that has the most serious penalty, being a seven years jail term.
[12] In deciding how serious this type of offending is, the Court of Appeal has suggested that key factors include premeditation, the nature and frequency of the threats, the ability of the offender to effect the threat and the actual danger to the victim.1 It is not clear in this case whether your behaviour was premeditated, though I think it unlikely. I also accept that there was only the one incident where you made a threat to kill. However, in my view, there was a real and present danger, both
because of your intoxication and the way you drove, and the victim was in substantial fear at the time because it seemed you were intent on immediately carrying out your threat. These, in my view, are particularly aggravating features.
[13] Having regard to the cases the lawyers have referred to in their written submissions,2 I consider 12 months imprisonment is the appropriate starting point for the threatening to kill charge where, as here, you were in a position to be able to effect the threat and you seemed prepared to do so from the victim’s point of view. I
also take into account her vulnerability and the breach of trust this involved. She got
1 Faaleaga v R [2011] NZCA 495.
2 Faaleaga v R [2011] NZCA 495; McKinlay v Police HC Rotorua CRI-2011-470-000028,
28 November 2011; Lusty v R [2012] NZCA 275, and Richards v Police [2015] NZHC 2650.
into the van on the understanding that you were going to talk about your relationship; she had not envisaged that you were going to threaten to kill her and then drive in a way that made that threat seem very real.
[14] I then also have to take into account what uplift is required to reflect the other offending. Dangerous driving and driving while intoxicated are both serious offences in their own right. Furthermore, although this is the first offence of this nature, it is exacerbated by your driving inexperience and your decision to drive after having been warned by police not to drive.
[15] You also assaulted the victim and, although she was not badly hurt, the physical violence towards her aggravates the seriousness of the threat to kill. However, I also note that I must be careful not to add too much to the sentence because I have already taken into account some of these factors in setting the
12 months as an appropriate start point. In my view, the starting point for the totality of this offending, taking into account all these aggravating features, is 16 months imprisonment.
Mitigating factors
[16] I then have to consider personal factors which may justify raising or reducing that starting point. Here it is accepted that there are a number of mitigating factors that you have to support a discount. You were only 20 at the time of the offending. You have no criminal history. You were away from your home country and you have little support in New Zealand. That may make a sentence of imprisonment harder on you and I suspect that you have already experienced that.
[17] I also take into account the terms of the pre-sentence report which assesses your risk of reoffending as low, and which explains that this offending has been an important learning point in your life. However, as Mr Power has pointed out, it does identify that there are offending related factors in this case, being the way you deal with relationships, alcohol and anger issues and it seems that these are issues which you have not really confronted and need to continue to work to address. However, I take some comfort from the fact that you say you have learnt a lot from this experience and you feel you have made significant gains since your remand in
prison. While I understand that restorative justice will not proceed, I also take into account the fact that you were willing to attend restorative justice as a positive factor.
[18] The Crown suggests that a credit of 15 to 20 per cent would appropriately reflect these factors. Your own lawyer has also referred to these mitigating factors and seeks a low sentence noting that, in any event, you will be deported when you are released from prison.
[19] In my view these factors, along with your rather unhappy personal background which is disclosed in both the Southern District Health Board notes and in the pre-sentence report, suggest a reasonably significant discount is warranted. I consider a discount of 25 per cent for these factors is appropriate. That would take the sentence back to 12 months’ imprisonment.
[20] I also give you a full credit of 25 per cent for your early guilty pleas and that brings your sentence down to 9 months’ imprisonment. I note that while that is a short sentence of imprisonment, home detention is not a practical option so I do not consider that further.
[21] I note that reparation was sought in the sum of $5,900 for the damage done to the safety barrier that your van drove along during this incident. You say however, that neither you, nor your family, have funds in which to pay the reparation requested. Regrettably, I accept it is unrealistic to make an order in these circumstances and I will not do so.
[22] Mr Falke I now invite you to stand please. [23] Mr Falke, I sentence you as follows:
(a) nine months’ imprisonment on the charge of threatening to kill;
(b)two months’ imprisonment on the male assaults female charge, two months’ imprisonment on the dangerous driving charge and two months’ imprisonment on the driving with excess breath alcohol
charges. These three sentences are all to be served concurrently with the first sentence on threatening to kill;
(c) I convict and discharge you on the offence of failing to comply with the prohibition;
(d) You are also sentenced to a period of disqualification from driving of
12 months on the charge of dangerous driving and a period of disqualification of six months, to be served concurrently, on the charge of driving with excess breath alcohol.
Solicitors:
RPB Law, Dunedin
Eagles Eagles and Redpath, Dunedin