R v Puke - [2009] NZCA 582

IN THE COURT OF APPEAL OF NEW ZEALAND
CA411/2009
[2009] NZCA 582
THE QUEEN
v
CHARLES PUKE
Hearing:2 November 2009

Court:William Young P, Chisholm and Priestley JJ
Counsel:G A Walsh for the Appellant

M E Ball for Crown

Judgment:11 December 2009 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
Introduction
[1]        The appellant challenges an effective sentence of two years four months imprisonment imposed by Judge R P Wolff in the Hamilton District Court in June 2009.
[2]        The appellant had pleaded guilty to seven counts after depositions.
[3]        The victim, in respect of four of the counts, was the appellant’s estranged wife. One of those counts was laid under s 189(2) of the Crimes Act 1961 being injuring with intent to injure. A further count, laid under s 306(1)(a), was threatening to kill. Both those counts attracted the lead sentence of two years four months imprisonment. The remaining two counts relating to the appellant’s wife were breach of a protection order, laid under the Domestic Violence Act 1995, and assault under s 196 of the Crimes Act. That offending was met with terms of three months imprisonment.
[4]        The three remaining counts in respect of which the appellant’s daughter was the victim were threatening to kill, similarly met with a two years four month term of imprisonment, breach of a protection order, and assault, which both led to three month terms of imprisonment.
[5]        All sentences were to be served concurrently.
Background
[6]        Previous domestic violence by the appellant had led to a final protection order made in 1997. Both the appellant’s wife and daughter had been victims and were protected persons under that order.
[7]        In August 2008 the appellant was in his home. Also present was his estranged wife, who at the time was visiting him, his daughter, aged 16, and two younger daughters of the couple aged 2 and 5.
[8]        The appellant’s daughter was apparently 17 weeks pregnant, a fact which agitated the appellant.
[9]        Before the arrival of the eldest daughter the appellant had been argumentative. He had yelled at his wife, criticising her ability as a mother and questioning her stability. The appellant then left the home in his car and returned shortly after with his pregnant daughter. He continued his verbal tirade against his wife telling her that he would slit her throat, was “sick of her shit”, and would shoot her. He drew his hand across his victim’s throat stating he would get his father’s butcher’s knife. He went to the adjacent kitchen for a short period, slamming cupboard doors and rattling cutlery. The two victims were seated on a couch with a five year old child standing behind the appellant’s wife and a two year old on her lap.
[10]      The appellant re-entered the lounge and a struggle with his daughter resulted in her being pushed against the table, whereupon she left the lounge with the two younger…

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 Puke

Details

AGLC: R v Puke [2009] NZCA 582
Case: [2009] NZCA 582
Decision Date: 11 December 2009

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the appellant, Charles Puke, appealed against a two-year four-month imprisonment sentence imposed by the Hamilton District Court. The appellant had pleaded guilty to seven counts of domestic violence, including threatening to kill, injuring with intent, and assault, against his estranged wife and daughter. The court needed to decide whether the sentence was appropriate given the severity of the offences and the mitigating factors presented. The Court of Appeal considered whether the trial judge's start point for the sentence was too high and whether the discount for the guilty plea was appropriate. The Court found that the judge's approach to the start point, while arguably severe, was within range given the circumstances of the case. The court also noted that the discount for the guilty plea was overly generous, as the appellant did not plead guilty immediately. Ultimately, the Court of Appeal concluded that the end sentence of two years and four months was not manifestly excessive, and the appeal was dismissed.

Orders