Uncles v R - [2012] NZCA 144

IN THE COURT OF APPEAL OF NEW ZEALAND

CA637/2011
[2012] NZCA 144

BETWEEN KATRINA MAREE UNCLES
Appellant

AND THE QUEEN
Respondent

Hearing: 12 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: R M Gould for Appellant
L C Preston for Respondent

Judgment: 16 April 2012 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of four years and seven months’ imprisonment is quashed and substituted by a sentence of imprisonment for three years and eight months.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

Katrina Maree Uncles was sentenced to a term of four years and seven months’ imprisonment on charges of wounding with intent to injure and aggravated burglary. She appeals that sentence.
Prior to the attack Ms Uncles had formed the belief that the complainant had been having sexual contact with her 14 year old son. The complainant was a 62 year old male who was living alone and was at the time on bail having been charged with historic child sex offending.
The complainant was in bed in his home at around 10 or 11pm at night when he was woken by a knocking at the door. When he did not open the door, the door was kicked open. He was in the process of calling the Police when Ms Uncles came into his room and tried to grab the telephone. The complainant hit Ms Uncles with the back of his hand. Ms Uncles then called out to her co-accused Grayson Weaver who ran in, pushed past Ms Uncles, and punched the complainant in the face so that he fell to the ground hitting a tallboy as he did so. The complainant got to his hands and knees and was then struck by four blows to the head delivered by Mr Weaver.
A noose from a rope was then placed around the complainant’s neck and tightened. He struggled but was being strangled by the noose. His struggling made the strangulation worse. He pretended to pass out. However, the strangling continued. The complainant got to the point where he in fact did start to pass out. The noose was suddenly released and the attackers left.
The Police arrived soon after. They observed that the door had been smashed and that there was broken glass and blood in the house. The complainant was found slumped on the floor and bleeding with the noose still around his neck.
The complainant was admitted to Palmerston North Hospital. He spent in total a week in the intensive care ward before being transferred to Hutt Hospital where he underwent a seven hour operation to have his injuries repaired. There was a further period of intensive care. He had multiple facial fractures including fractures to his jaw and nerve damage to his left eye. Plastic surgery was required to repair the wounds. In addition, he suffered bruising, swelling and cuts. He has been severely affected by the assault. He is fearful and hears noises at…

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 Uncles v R

Details

AGLC: Uncles v R [2012] NZCA 144
Case: [2012] NZCA 144
Decision Date: 16 April 2012

CaseChat Overview and Summary

Katrina Maree Uncles was convicted and sentenced to four years and seven months' imprisonment for wounding with intent to injure and aggravated burglary. The sentencing was appealed on the basis that the sentencing judge failed to adequately consider the appellant's serious mental illness as a mitigating factor, as well as her remorse and personal circumstances. The psychiatric evidence presented indicated that Ms Uncles was suffering from a severe mental disorder at the time of the offending, which significantly impaired her judgment and may have supported a defence of insanity. The sentencing judge did not consider the mental disorder as a mitigating factor but only in relation to her detention. The Court of Appeal held that the discount for Ms Uncles' mental disorder, remorse and rehabilitation should have been 20 per cent, resulting in a sentence of three years and eight months' imprisonment. The appeal was allowed and the sentence was substituted.

The Court of Appeal allowed the appeal and substituted the sentence of four years and seven months' imprisonment with a sentence of imprisonment for three years and eight months. The Court held that the sentencing judge failed to adequately consider the appellant's serious mental illness as a mitigating factor, as well as her remorse and personal circumstances. The Court found that a discount of 20 per cent for these factors was appropriate, resulting in a sentence of three years and eight months' imprisonment. The Court emphasised the importance of considering the appellant's mental disorder in the sentencing process, as it significantly impaired her judgment and may have supported a defence of insanity. The Court noted that while there was a disparity between the sentences imposed on Ms Uncles and her co-accused, it was fully justified by the clear evidence of Ms Uncles' serious mental disorder.

Orders