R v Putt - [2009] NZCA 38

IN THE COURT OF APPEAL OF NEW ZEALAND
CA651/2008
[2009] NZCA 38
THE QUEEN
v
RUATAPU JUNIOR TOSH PUTT
Hearing:18 February 2009

Court:Ellen France, Harrison and Cooper JJ
Counsel:H D M Lawry for Appellant

M D Downs for Crown

Judgment:26 February 2009 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of five and a half years imprisonment imposed on the charge of wounding with intent to cause grievous bodily harm is quashed and a sentence of three and a half years imprisonment is substituted.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       The appellant pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. He was sentenced on 19 September 2008 by Judge Treston to a term of imprisonment of five and a half years: DC MAN CRI 2008-092-000343. He appeals against sentence on the basis that the sentence was manifestly excessive.
[2]       The appeal requires consideration of the way in which the appellant’s history of Youth Court offending and the victim’s violence towards the appellant impacts on sentence.
Factual background
[3]       The incidents giving rise to the offending took place on 8 January 2008. The appellant, then aged 18, was at home along with his father who is the complainant. They were both present, along with other family members, for a wake for a family member. Both had been drinking and were intoxicated.
[4]       An argument developed between the appellant and his father over the appellant’s treatment of his girlfriend. The two fought and the complainant hit the appellant on the head with a stereo, leaving the appellant unconscious.
[5]       When the appellant regained consciousness he became enraged. He went to his bedroom, which is an external garage on the property. There he obtained a machete and a kitchen knife. The appellant then went out to where his father was standing and stabbed him with the knife in his right shoulder, left armpit and chest. In all, there were four stab wounds.
[6]       The complainant lost consciousness through blood loss and was hospitalised. His injuries were described as very serious but he has had a full recovery. The appellant and his father have since reconciled with each apologising to the other.
The sentencing remarks
[7] In sentencing the appellant, Judge Treston treated the use of a weapon and the seriousness of the injuries as aggravating features. The Judge also said there was an element of premeditation because the appellant had gone outside the house to collect the weapons so it was not a “spur of the moment thing”: at [20].
[8]       Judge Treston saw the starting point in terms of R v Taueki [2005] 3 NZLR 372 (CA) as six to seven years imprisonment. That figure was uplifted to eight years imprisonment to reflect the appellant’s Youth Court history. That history comprised notings in 2005 (operating a motor vehicle recklessly and possession of an offensive weapon) and in 2006 (kidnapping, dangerous driving of a motor…

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 Putt

Details

AGLC: R v Putt [2009] NZCA 38
Case: [2009] NZCA 38
Decision Date: 26 February 2009

CaseChat Overview and Summary

In the appeal of R v Putt, the appellant, Ruatapu Junior Tosh Putt, challenged the sentence imposed on him for wounding with intent to cause grievous bodily harm. The incident occurred on 8 January 2008, when an argument between Putt and his father escalated into a violent altercation. The father struck Putt on the head with a stereo, causing him to lose consciousness. Upon regaining consciousness, Putt retrieved a machete and a knife and stabbed his father multiple times. The father was hospitalised with serious injuries but has since made a full recovery. The appellant pleaded guilty to the charge and was sentenced to five and a half years imprisonment. He appealed the sentence, arguing it was manifestly excessive.

The legal issues in this case centered on the appropriate starting point for sentencing and the extent to which factors such as the appellant’s history of Youth Court offending and the provocation provided by the victim's actions should be considered. The appellant argued that the starting point should have been lower, and that the effect of the victim's conduct warranted a significant discount. The Crown contended that the final sentence was within the appropriate range and that the appellant's Youth Court history could be considered as an aggravating factor.

The Court of Appeal allowed the appeal and substituted the sentence. The court found that the starting point of eight years was too high and that the appellant's Youth Court history should have been offset against the discount for his youth rather than being treated as an aggravating factor. The court also concluded that the appellant's actions were provoked and that this should have been factored into the sentencing equation. After considering the appellant's remorse, guilty plea, and participation in a restorative justice process, the court determined that a sentence of three and a half years imprisonment was appropriate. The appeal was allowed, and the sentence was reduced accordingly.

Orders