Apiata v Police

[2021] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000125

[2021] NZHC 3224

BETWEEN

KIRIKAA LEEAM POU APIATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 November 2021
Appearances:	M R Douglas (on behalf of W T Nabney) for Appellant B Smith for Respondent
Judgment:	29 November 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 29 November 2021 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Rotorua

APIATA v NEW ZEALAND POLICE [2021] NZHC 3224 [29 November 2021]

[1]    Mr Apiata pleaded guilty to charges of being in unlawful possession of a firearm and ammunition as well as assault with intent to injure and behaving in a disorderly manner that was likely to cause violence against persons to continue.

[2]    On 30 September 2021 Judge T R Ingram sentenced Mr Apiata to two years six months imprisonment.1 Mr Apiata appeals against sentence on the basis that errors in the Judge’s approach to sentencing resulted in an end sentence that was manifestly excessive. He also challenges the sentence on the basis of disparity. He says the sentence he received is unjustifiably greater than the sentence imposed on one of his co-offenders.

The charges

[3]    The first set of charges related to an incident that occurred on 23 March 2021. On that date Mr Apiata was travelling in a motor vehicle with two patched members of the Mongrel Mob. Mr Apiata is also a patched member of the Mongrel Mob. They pulled up at a set of traffic lights and began making abusive gestures towards a person who was travelling in another vehicle with a female associate.

[4]    Approximately 15 minutes later Mr Apiata and his associates saw the same person and his partner on the street. They stopped their vehicle and confronted the male about his association with the rival Black power gang because he was wearing a blue T-shirt. The male denied having any association with the Black power gang. The group then chased the victim into commercial premises, where they were told by staff on numerous occasions to leave. They then engaged in a concerted attack on the victim. He was punched to the ground and Mr Apiata kicked him at least twice in the head. His co-offender, a Mr Diesel Withers, also punched the victim, stomped on his back on two occasions and kicked him in the torso.

[5]    Later the same day the police subsequently executed a search warrant at a property occupied by Mr Apiata’s co-offenders. There they discovered a .22 calibre rifle and 27 rounds of the same calibre ammunition. Mr Apiata claimed responsibility

1      New Zealand Police v Apiata [2021] NZDC 19509.

for both the firearm and the ammunition. He does not hold a firearms licence entitling him to be in possession of the firearm.

The sentence

[6]    The Judge adopted a starting point of 18 months imprisonment on the charge of assault with intent to injure. He then took a starting point of 18 months imprisonment on the charge of being in unlawful possession of a firearm. He increased this by six months to reflect the ammunition the police found with the firearm. This resulted in a sentence of 24 months imprisonment on the firearms charges and a cumulative sentence of 18 months imprisonment on the charges involving allegations of violence.

[7]    The Judge applied a discount of 12 months, or approximately 28 per cent, to reflect guilty pleas and Mr Apiata’s good employment record. This resulted in concurrent end sentences of 18 months imprisonment on the charges relating to the unlawful possession of the firearm and ammunition. The Judge then imposed a cumulative sentence of 12 months imprisonment on the charge of assault with intent to injure. He imposed a concurrent sentence of two months imprisonment on the charge of behaving in a disorderly manner.

The appeal

[8]    On Mr Apiata’s behalf Mr Douglas challenges the sentence on the following grounds:

(a)The starting point the Judge adopted on the charge of assault with intent to injure was too high;

(b)The starting point selected on that charge was also unjustifiably greater than the sentence imposed on one of Mr Apiata’s co-offenders;

(c)The Judge adopted a starting point that was too high on the charge relating to the unlawful possession of a firearm and ammunition;

(d)The Judge failed to consider the issue of totality when imposing cumulative sentences.

[9]    Mr Douglas contends that the end sentence should have been one of two years imprisonment or less. Given Mr Apiata’s relatively limited criminal history and favourable employment record Mr Douglas says the Judge ought to have imposed a sentence of home detention. He therefore asks this Court to reduce the sentence to one of two years imprisonment or less and to grant Mr Apiata leave to apply for that sentence to be converted to one of home detention.

Challenges to the starting points

The charge of assault with intent to injure

[10]   In support of his submission that a starting point of 18 months imprisonment was too high Mr Douglas relies on the decision of the Court of Appeal in Tamihana v

R.2 That case involved an attack by two offenders on a victim. The appellant punched

the victim in the face and the victim fell to the ground. The appellant’s co-offender kicked the victim whilst he was on the ground. The appellant then ran up to the victim and kicked him once in the head. The victim suffered bruising and grazes to the face. In the High Court a starting point of 18 months imprisonment had been adopted. The Court of Appeal held that this was too high, and that a starting point of no more than 12 months imprisonment was appropriate.3 This was particularly so given the fact that a starting point of 12 months imprisonment had been adopted for the co-offender who had been responsible for kicking the victim in the head.

[11]   I consider there is a major difference between the circumstances of the present case and those in Tamihana. In Tamihana, there was no gang dimension to the offending. The attack in the present case occurred solely because Mr Apiata and his co-defendants took umbrage at the fact that the victim was wearing colours associated with a rival gang. Serious offending prompted solely by gang-related motives plainly justifies a deterrent response. Furthermore, there were three attackers involved in the present case, whereas only two assailants attacked the victim in Tamihana. Given

2      Tamihana v R [2015] NZCA 169.

3 At [25].

these additional aggravating factors, I consider the starting point of 18 months imprisonment was justified.

The charges relating to the firearm and ammunition

[12]   Mr Douglas points out that the firearm that the police recovered from Mr Apiata’s co-offenders’ address was not modified in any way. Rather, it was a standard type of rifle often used for hunting. He contends a starting point of no more than 18 months imprisonment could have been justified.

[13]   Mr Douglas relies on Moore v Police, which also involved an appeal against sentence on charges relating to the unlawful possession of a firearm and ammunition.4 That case involved the unlawful possession of a .22 semi-automatic rifle and 38 rounds of ammunition. This Court noted that the starting point of 16 months imprisonment was generous and observed that in several similar cases starting points of 18 months imprisonment had been taken.

[14]   I acknowledge that the starting point the Judge selected was probably at the upper end of the available range. However, a starting point of 18 months imprisonment is often adopted in cases involving only the unlawful possession of a firearm. I do not consider an uplift of six months to reflect the fact that Mr Apiata was also in possession of a considerable number of rounds of ammunition put the end starting point outside the available range.

Disparity

[15]   This issue arises because another Judge sentenced Mr Withers to four months community detention on the same charge as Mr Apiata faced.5 Mr Douglas submits such a disparate approach to sentencing when the culpability of both offenders was effectively the same cannot be justified. He submits this Court should reduce the starting point significantly to reflect that fact.

4      Moore v Police [2015] NZHC 3113.

5      New Zealand Police v Withers [2021] NZDC 23143. The third co-offender was dealt with in the Youth Court.

[16]   Given my conclusion in relation to the starting point the Judge adopted for this charge it is clear that the sentence imposed on Mr Withers was manifestly inadequate. However, in this area of the law two wrongs do not make a right.6 An informed and objective observer would immediately realise the inadequacy of the sentence imposed on Mr Withers. If the sentence imposed on Mr Apiata was reduced to one of four months community detention the administration of justice would be brought further into disrepute.

[17]   The approach generally taken in this type of situation is to reduce the sentence imposed on an appellant in Mr Apiata’s position. This will only occur where the disparity cannot be justified and is gross.7 Reduction of an appellant’s sentence in such circumstances reflects the need to avoid public concern at the administration of justice.8 However, the sentence cannot be reduced to the point where it does not reflect a reasonable response to the overall gravity of the offending.

[18]   Mr Apiata was slightly more culpable than Mr Withers because Mr Withers did not strike the victim in the head. Even so, I am satisfied the disparity between the two sentences is gross and unjustified. Reduction of the sentence imposed on Mr Apiata can therefore be justified on public policy grounds even though the offending deserved the starting point the Judge selected. I propose to reduce the starting point on the charge of assault with intent to injure to one of 12 months imprisonment.

[19]   Once this is added to the sentence imposed on the other two charges Mr Apiata becomes liable to an effective sentence of three years imprisonment before taking into account mitigating factors.

[20]   The Judge applied a discount of approximately 28 per cent to reflect guilty pleas and the fact that Mr Apiata has a good employment record. Applying the same level of discount to the reduced sentence results in a discount of 10 months. This results in the sentence being reduced to one of two years two months imprisonment.

6      R v Feterika [2008] NZCA 127; Feterika v R [2008] NZSC 67.

7      R v Rameka [1973] 2 NZLR 592 (CA); R v Lawson [1982] 2 NZLR 219 (CA); Singh v R [2013] NZCA 245.

8      R v Thompson CA245/98, 22 December 1998.

Totality

[21]   The Judge did not expressly refer to the issue of totality. However, I do not consider an effective end sentence of two years two months imprisonment to be out of all proportion to the overall gravity of Mr Apiata’s offending. There will therefore be no adjustment for totality.

Result

[22]   The appeal is allowed in relation to the charge of assault with intent to injure. On that charge Mr Apiata is sentenced to eight months imprisonment. He is to serve that sentence concurrently with the sentence imposed on the charge of disorderly conduct but cumulatively on the concurrent sentences of 18 months imprisonment imposed on the charges relating to the unlawful possession of firearms and ammunition.

Lang J