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 children.

[11]      The appellant then grabbed his wife around the throat and started to shake her, yelling out that he would kill her and was “sick of her shit”.  Whilst his victim tried to fight the appellant off she was struggling to breathe.  The appellant continued to squeeze her throat telling his wife he did not care if he killed her in front of the babies.  He continued to hold his wife on the couch squeezing his left hand around her larynx, commenting on her raised veins and bloodshot eyes, and stating that she was going to die soon.

[12]      The appellant’s daughter returned to the room and tried to pull the appellant away from her mother.

[13]      The appellant then renewed his assault on his daughter pushing her in the chest, causing her to fall backwards into a washhouse.  He continued to abuse and threaten his two victims whilst they fled from the address.

Sentence

[14]      The Judge referred to R v Harris [2008] NZCA 528, noting that care had to be exercised against shrinking the R v Taueki [2005] 3 NZLR 372 (CA) bands in a mathematical exercise to reflect the lower s 189(2) maximum of five years imprisonment. The Judge referred to the three bands set out for guidance in R v Harris at [10] and concluded that whilst the injury to the appellant’s wife was not serious, the surrounding circumstances placed the offending in the very broad Harris third band of a sentence from 18 months up to the five year maximum.

[15]      The Judge, sensibly in our view, concluded that, rather than draw distinctions between whether the start point should reflect the threatening to kill counts or the intent to injure count a “global overall start point” of three and a half years was appropriate.  He observed that the threats to kill were accompanied by the rattling of kitchen cutlery and further comments made whilst the appellant was actually throttling his wife. 

[16]      The Judge declined to uplift the three and a half year start point to reflect the appellant’s previous criminal history.  He allowed a third discount as a credit for the appellant’s guilty plea even though this plea had not been entered “immediately”.  That discount for the three and a half year start point led to an end sentence of two years and four months imprisonment.

Discussion

[17]      Mr Walsh submitted that the Judge’s start point was too high and should have been one of two and a half years imprisonment.  Counsel conceded that aggravating features included the actual violence used and the appellant’s abuse of trust so far as the offending against his daughter was concerned.

[18]      Reference was made to the appellant’s claim to the probation officer that he was motivated to change and would be prepared to undertake a rehabilitative programme. 

[19]      In counsel’s submission, particularly having regard to a three and a half year start point approved by this Court in R v Fekita [2008] NZCA 108, the three and a half year start point deployed by the Judge was manifestly excessive.

[20]      We do not consider that there is much point, in the circumstances of this case, trying to assess the Judge’s start point against the facts of other cases.  Relevant here are the following facts to which the appellant pleaded guilty.  There were threats to kill made against two victims.  Both victims were protected persons.  The threat to kill his wife was accompanied by intentionally injuring her by throttling.  His daughter was pregnant at the time.  Two young children were in the house.  Both victims were in the appellant’s home, as his guests.  There was a duty of protection owed to his young pregnant daughter.  His violence and threatening behaviour was sustained.

[21]      We consider that the Judge was correct to approach those factors in a global way.  We consider that his adopted three and a half year start point, although arguably severe, was within range.

[22]      Given the recent judgment of this Court in R v Hessell [2009] NZCA 450 at [15] and [16], the one third discount given by the Judge for the guilty pleas was generous and at a level beyond the appellant’s entitlement. The offending took place on 17 August 2008. Summarily laid charges were subsequently withdrawn and indictable informations were laid the following month. The appellant pleaded guilty on 14 October 2008 to a related charge of assaulting a police officer. There was a preliminary hearing on 17 November 2008 at which a prima facie case was conceded. It was not until 19 March 2009, some seven months after the offending, that guilty pleas were entered on arraignment.

[23]      Any severity which might flow from the three year six month start point is tempered by an overly generous discount for the guilty pleas.

[24]      It follows that the end lead sentences of two years and four months are not manifestly excessive.

Result

[25]      The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington