Bonfert v R [2012] NZCA 313 (18 July 2012)

Last Updated: 25 July 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/2012 CA124/2012 [2012] NZCA 313

BETWEEN PETER BONFERT Appellant

AND THE QUEEN Respondent

Hearing: 12 July 2012

Court: Arnold, Potter and MacKenzie JJ

Counsel: C Muston for Appellant D J Boldt for Respondent

Judgment: 18 July 2012 at 11 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

2. The appeal against sentence is allowed. The sentences of nine months’ and 14 months’ imprisonment are quashed and the following concurrent sentences are substituted:

(i) On the count of threatening to kill, a sentence of 16 months’ imprisonment.

(ii) On each the two counts of male assaults female, a sentence of six months’ imprisonment.

(iii) On the count of assault with a weapon, a sentence of three months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1] The appellant was convicted following trial in the District Court at Whangarei on four counts arising from incidents on 10 and 13 January 2011. He was sentenced on 25 November 2011 by Judge Duncan Harvey to nine months’ imprisonment for the events on 10 January and 14 months’ imprisonment for the events on 13 January, to be served cumulatively.[1] The appellant appeals against conviction and sentence.

Background

[2] The appellant and the complainant are both German nationals who had been living together in New Zealand since early 2009. They were originally romantically involved. That relationship ended, but they remained living together in the same house.
[3] The Crown alleged that on 10 January 2011 an argument started between the two and the appellant started to verbally abuse the complainant. He pushed her onto the couch, sat on her and threatened to punch her. He then left the room. The two moved to another room. The appellant put his hands around the complainant’s neck. She lost consciousness and awoke finding the appellant giving her mouth to mouth resuscitation.
[4] The Crown also alleged that on 13 January 2011 another argument broke out. The appellant picked up an office chair above his head, threatening to hit the complainant with it. He then threw it on to the floor. He then picked up a kitchen knife and said to the complainant “I could kill you”, in German. He then left the room and put the knife back. (The appellant’s evidence was he grabbed the knife because he found it behind the computer: as the complainant denied putting it there, he wanted to show her which knife he was talking about.)
[5] The appellant was charged with five different counts for this alleged offending:

• (a) male assaults female under s 194(b) of the Crimes Act 1961;
• (b) either:
  • (i) disabling by rendering the complainant unconscious under s 197 of the Crimes Act; or
  • (ii) male assaults female under s 194(b) for placing his hand around her throat;
• (c) assault with a weapon under s 202C(1)(a) for assaulting the complainant with the chair; and
• (d) threatening to kill under s 306 of the Crimes Act.

[6] The jury found the appellant guilty of (a), (b)(ii), (c) and (d).

The appeal against conviction

(a) Grounds

[7] The appellant appeals his conviction on two grounds. First, that there should have been a warning given to the jury under s 122 of the Evidence Act 2006 that the complainant’s evidence could be unreliable because she was intoxicated when the alleged offending occurred. The appellant acknowledges that the Judge did refer to this in his summing up but argues the Judge did not do it in the terms required by s 122.
[8] Secondly, in respect of count (d) the appellant submits that the elements required by s 306 of the Crimes Act were not made out. Section 306 requires a threat to kill. Counsel refers to the case of R v Adams where the Court said it is inherent in the making of a threat that the words should be intended to be taken seriously.[2] The appellant submits that the words used were probably “ich kontte dich umbringen”, which literally translate as “I will/could kill you”, but actually mean “I’ve had enough of you”. Counsel submits the appellant did not intend these words to be taken seriously. Randerson J issued a minute on this on 8 June 2012.

(b) First ground of appeal

[9] The complainant first made a statement to police on 13 January 2011, when police attended the house following her telephone call. She spoke about the events both of 10 January and 13 January. She said that the appellant had been verbally abusive towards her since she had told him their relationship was over about two months previously. On Monday 10 January, after the appellant had picked her up from work and they had returned home, they started arguing. He started pushing her. He pushed her onto the couch and raised his fist as if he was going to punch her. She received bruising on her left arm and right leg. He then went out to purchase a bottle of wine. When he returned she was on the computer. He continued the argument. He swung her chair around and grabbed her by the throat and started strangling her. He had both hands around her throat, squeezing really hard. She thought she became unconscious. She woke up to find him giving her mouth to mouth resuscitation. On 13 January another argument developed. The appellant picked up a chair and raised it above his head as if he was going to hit her with it. He was swearing at her while he did so. He threw the chair on the floor. He went to the kitchen and returned with a large kitchen knife in his right hand, held as if he was going to stab her. The interview notes then record that the appellant said “I’m going to kill you”. She screamed “are you crazy” and said “don’t do that”. He then put the knife away in the kitchen. She called the police and he became calm.
[10] At trial, the complainant was clearly a reluctant witness. She gave evidence that essentially down played the seriousness of the incidents she had described in her statement. Following a Crown application, the Judge gave a ruling in which he described the complainant as extremely reluctant to be in Court, not wishing to give evidence and that her evidence was considerably different to the statement she made on 13 January 2011. The Judge declared her hostile. In the initial grounds of appeal filed, counsel for the appellant submitted that the Judge should not have declared the witness hostile but this ground was not pursued as a separate ground at the hearing.
[11] The Judge dealt with the complainant’s evidence at some length in his summing up. He said:

[54] Now in this case I allowed the prosecutor to cross-examine [the complainant] about a statement she made to the police shortly after the second incident occurred. You have heard that as my declaring her hostile. Now when she was being cross-examined by Ms Henderson it was suggested to her that she had said things very different about what had happened to her as compared to the evidence that she was giving in Court. Now [the complainant] in part accepted that, but she explained that there were language difficulties, that she did not say some of the things that she is recorded as saying, that she was drunk and that she wanted to withdraw her complaint. She maintained that her current evidence, the evidence that she was giving in Court, was correct.

[55] Now it is a matter for you to decide whether you accept her present evidence in Court or the earlier statement. If you accept that the earlier statement is correct, that is evidence that you can use in your deliberations. The inconsistency in the two statements is also something to take into account when deciding if you consider that [the complainant’s] evidence on the topic is reliable.

[56] I said to you that I would say a little more to you about language difficulties. Both the complainant and the Accused have said to you that they have had language difficulties and that is their explanation for some of the comments they made. You are in the fortunate position of having watched both the complainant and the Accused give evidence. You watched the Accused during the DVD interview and you heard Constable Evans give you his view as to the complainant’s understanding of the English language. Now one of the things I suggest that you will need to consider during your deliberations is whether in fact either the complainant or the Accused, or both of them, were genuinely having difficulty with the English language, or whether they are now using that as an excuse to try and avoid some unpleasant consequences.

[57] You will also recall that when it was put to the complainant – I will say that again – you will also recall that when the complainant was asked why she wouldn't sign the statement, which was a typed copy of what had been handwritten, she gave various reasons, but at no stage, you might think, did she ever say that she did not sign it because what she had said was untrue. You may have gained the impression that she was minimising because she realised the consequences, possibly to her but also to the Accused. You will, of course, not forget Mr Puriri’s submission to you, however, that it may be that she did not wish to acknowledge her previous statement because that had been made in a state of pique and simply was not true. They are matters that you will need to grapple with when you are deliberating.

[58] Mr Puriri said to you that when you are looking at that previous statement you needed to look at it critically bearing in mind that it might not necessarily be true. And as a pointer he said to you remember that she said nothing to the police about having herself been drinking. Well you will have the statement with you in the jury room and I think you will find that in fact she most certainly did say that she had been drinking. She in fact told Peter to go away so she could have her wine.

[12] The essence of Mr Muston’s submission on this ground of appeal is that the reference to the complainant drinking was not in the context of a warning. Mr Muston submits that this is a case in which her reliability was very much in issue because of the amount of alcohol consumed by her and her references to her intoxicated state.
[13] Mr Boldt submits that the Judge’s approach was dictated by the unusual nature of the evidential contest in the case. He submits that at trial the complainant and the appellant had effectively combined to support an alternative and far more innocent version of events than those that both of them described when speaking to police at the time. He submits that, rather than the jury being asked to choose between the evidence of the complainant and the appellant, they were in effect asked to decide between the statements of the two parties made soon after the offending and the far more innocuous evidence they wished to give at trial. He notes that the complainant was not intoxicated when she made her statement on 13 January and that the extent of her intoxication during the events of 10 January was a matter for the jury to determine. He submits that there were no obvious indicators of unreliability in the complainant’s police statement and that the appellant effectively admitted the original allegations in his statement to police on 13 January. Mr Boldt further submits that the photographs showing the injuries to the complainant were supportive of her original account. Mr Boldt also notes that no request was made pursuant to s 122(3) of the Evidence Act.
[14] We consider that this is not a case where a s 122 warning was required. In Taylor v R this Court said:[3]

Most Judges will tread cautiously in determining whether to give a reliability warning. A specific warning about the reliability of particular evidence has the potential to influence the jury’s deliberations, one way or the other. The Court must always bear in mind that the constitutional function of determining guilt rests with the jury, whose collective task it is to evaluate all relevant evidence. If a warning was given, it should be expressed as neutrally as circumstances permit.

[15] We consider that the issue as to the reliability of the complainant’s evidence was squarely and appropriately put by the Judge in the passage we have quoted. The extent of the complainant’s intoxication on 10 January was relevant to the claim that her unconsciousness on 10 January was a result of intoxication rather than strangulation. It was also relevant to the assessment of the extent to which her recollection and description on 13 January may have been affected by her intoxication on 10 January. As to the first of those issues, the jury acquitted the appellant on the more serious alternative in the second count of rendering the complainant unconscious. Because the extent of intoxication of the complainant was an important factual issue for the jury to determine, the Judge needed to be careful, in his directions on reliability, not to say anything that could have been seen as expressing a view on that factual question. There is, in our view, no risk of a miscarriage of justice arising from the way in which the Judge directed on the issue of the reliability of the complainant’s evidence.

(c) Second ground of appeal

[16] Mr Muston submits that the actual German phrase used in relation to the alleged threat to kill was not made clear. He submits that the actual phrase was not a threat to kill and was not understood to be a threat to kill by either the appellant or the complainant.
[17] The constable recorded the complainant’s statement as being that the appellant had said “I’m going to kill you”. The appellant spoke in German. At trial, the complainant gave some of her evidence in English, but was also assisted by a translator. The transcript records that the phrase used was translated into English at trial as “I could kill you”.
[18] Counsel for the appellant initially sought to file an affidavit from an interpreter addressing the language issue. Following a pre-hearing telephone conference before Randerson J, a direction was given that a qualified interpreter should listen to the transcript and file an affidavit. That affidavit has been of assistance on this appeal. The interpreter has translated the relevant phrase as “I could kill you”. That is as it is translated in the evidence that the jury heard, and in the transcript they had available.
[19] Mr Muston submits that the phrase “I could kill you”, when used in German (and indeed in English), can be used in a way that does not convey a threat to kill. Counsel acknowledges that the context is important in determining the meaning to be attributed to the phrase, but submits that the context must be subordinate to the actual words used and that the actual words used “I could kill you” do not constitute a threat to kill.
[20] Mr Boldt submits that, while the words used can often mean little more than a general expression of frustration, the context is particularly important. He submits that the words were uttered in circumstances that showed the appellant did intend them to be taken seriously. The appellant said the words while standing over the complainant, whom he had just threatened with a chair, holding a knife raised to her.
[21] The Judge summed up the respective contentions of the parties in these terms:

[43] Now question 2 is this; when the Accused uttered the threat, did he intend [the complainant] to take the threat seriously as a threat that might be carried out?

[44] The Crown say he must have had that intention. He left the room. He went and got the knife. He came into the room, he was angry; he was holding the knife up. He told her not to lie and then made some reference to kill. The Crown say what was [the complainant] to take out of that other than to take the threat seriously, that it might be carried out.

[45] The Accused said, “No. Yes I was angry but I simply had the knife to show her that this was the knife I was talking about. This is the knife that you put behind the screen. Yes I said something kill but not in the way that it is understood in the English language. That’s not what I meant.”

[46] Well if you answer that question yes, you will find the Accused guilty. If you answer it no, you will find him not guilty.

[22] We consider that passage squarely placed the issue before the jury. The Judge’s directions on it were appropriate. That was an assessment for the jury to make. This ground of appeal must fail.

(d) Result

[23] The appeal against conviction is accordingly dismissed.

The appeal against sentence

(a) The sentencing

[24] Judge Harvey noted that the aggravating features of the offending included the violence involved, the harm caused to the victim and the abuse of trust. There were no mitigating factors. In terms of personal circumstances, the Judge acknowledged that the probation officer was of the opinion that the appellant showed no remorse and viewed counselling sessions with scepticism. The Judge took a more benevolent view to the counselling sessions attended, although overall reached the same rather negative view as the probation officer of the appellant. The Judge took into account that he was previously of good character and was a first time offender, at the age of 46.
[25] Referring to R v Lee, the Judge concluded that the option of community detention/work was not available.[4] He thought cumulative sentences of imprisonment should be imposed.
[26] Taking first the two charges of male assaults female, and considering that the strangulation was of a serious degree, the Judge took a starting point of 12 months’ imprisonment. Credit was given for the appellant’s previous good character and the consequences of imprisonment on him, and the Judge ended with nine months’ imprisonment. In terms of the second set of offending, the Judge took the threat to kill as the lead charge. Taking into account the threat with the chair, the Judge took a starting point of 18 months’ imprisonment. An allowance of four months was given for his previous good character and personal circumstances, leading to a sentence of 14 months’ imprisonment.
[27] These two sentences were imposed cumulatively, amounting to a sentence of 23 months’ imprisonment.

(b) The submissions

[28] Counsel for the appellant submits the sentence reached was manifestly excessive. He submits that concurrent not cumulative sentences should have been imposed. The offences were only two to three days apart, between the same parties, in the same place, and arose from the same argument. Counsel for the appellant further submits that the term was excessive given the principles in s 8 of the Sentencing Act. There was no application of physical force by the appellant, apart from the alleged strangulation. He had no criminal history. The complainant was supportive of him and there was no victim impact statement. Also, the appellant and complainants’ immigration status was relevant and should have been considered.
[29] Counsel submits that R v Lee is not comparable. There the offender, a recidivist offender, abused the complainant while she was asleep, slapped her, demanded sex, straddled her, waved a knife in front of her and threatened to use the knife if she called the police. He was sentenced to 15 months’ imprisonment.
[30] Mr Muston submits that the Judge should not have taken into account the alleged strangulation in sentencing. He submits that the photographic evidence was too unreliable to make a firm finding of fact about the degree of strangulation. The complainant was affected by alcohol and said in evidence she believed she could withdraw her statement at any time, showing she was not being very careful when she made it. Counsel submits that the conclusion that the strangulation was serious is inconsistent with the conviction for male assaults female instead of disabling.
[31] In his written submissions, Mr Boldt submitted that cumulative sentences were justified under s 84 of the Sentencing Act 2002. He submitted that it was open to the Judge to conclude that a deterrent sentence was required. Mr Boldt referred to the pre-sentence report, which noted an ongoing anti-social attitude and a tendency for the appellant to characterise himself as the victim. He showed no inclination to take responsibility for his offending and no sense of guilt or remorse. Mr Boldt accordingly submitted that both components of the sentence were available to the Judge and that the sentence is not manifestly excessive.
[32] In his oral submissions, Mr Boldt retreated somewhat from that rather uncompromising position. He acknowledged that the sentence was a stern one. He also acknowledged that the Judge could properly have taken a concurrent sentencing approach. On that basis, he submits that a starting point of 18 months adopted by the Judge for the second incident, treating that as the lead offence, was justified.

(c) Discussion

[33] The Judge adopted a cumulative approach. Section 84 of the Sentencing Act provides:

(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a) the time at which they occurred; or

(b) the overall nature of the offending; or

(c) any other relationship between the offences that the court considers relevant.

[34] Here, we consider that the offences were not different in kind in terms of s 84(1). The distinction that the Judge drew, in imposing cumulative sentences, was between the two incidents. Those two incidents on 10 and 13 January were very similar, and all of the offences in both incidents were sufficiently similar in nature to be regarded as not different in kind.
[35] The second relevant consideration is whether the offences were a connected series of offences. We consider that they clearly were. Both incidents arose out of the tense domestic situation that existed after the parties had ceased their relationship but continued living together in the same house. They occurred within several days of each other. We consider therefore that the offences were both of a similar kind and a connected series of offences.
[36] Furthermore, where a cumulative approach is adopted, it is necessary for the sentencing Judge to consider the totality principle, and, under s 85(2) of the Act, to consider whether the cumulative sentences will result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. In his sentencing notes, the Judge, after fixing the individual sentences for each incident, did not go on to address the question of whether the total sentence was proportionate to the totality of the offending.
[37] We consider that the approach adopted by the Judge has led to a sentence that is manifestly excessive.
[38] Because we have reached the view that concurrent sentences should have been imposed, it is necessary for us to reconsider the sentencing de novo. We take as the lead offence the most serious charge, that of threatening to kill. The Judge took a starting point for the second incident of 18 months imprisonment. Mr Boldt submitted that would be an appropriate starting point for the totality of the offending. We agree and adopt a starting point of 18 months, to reflect all charges.
[39] The next step is to adjust the starting point to reflect aggravating and mitigating personal factors. The Judge gave a credit for the appellant’s previous good character and the consequences for him of a sentence of imprisonment. He allowed a total discount, over both sentences, of seven months.
[40] We consider that a discount is required to reflect the appellant’s previous good character and the fact that he is a first offender. That is, however, tempered by the appellant’s lack of remorse, as described in the pre-sentence report. The views of the victim are also a relevant consideration. She did not provide a victim impact statement. In the particular circumstances here, no adjustment to the starting point is appropriate to reflect this factor.
[41] We consider that a discount of two months to reflect all personal factors is appropriate. That leaves an end sentence of 16 months’ imprisonment.

(d) Result

[42] The appeal against sentence is allowed. The sentences of nine months and 14 months’ imprisonment are quashed and the following concurrent sentences are substituted:

• (a) On the count of threatening to kill, a sentence of 16 months’ imprisonment.
• (b) On the two counts of male assaults female, a sentence of six months’ imprisonment.
• (c) On the count of assault with a weapon, a sentence of three months’ imprisonment.
  

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Bonfert DC Whangarei CRI-2011-088-177, 25 November 2011.
[2] R v Adams [1999] 3 NZLR 144 (CA) at [8].
[3] Taylor v R [2010] NZCA 69 at [64].
[4] R v Lee CA217/06, 28 November 2006.