NIGEL POUIVA AND THE KING
[2024] NZHC 2598
•10 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-147
CRI-2024-409-148 [2024] NZHC 2598
BETWEEN NIGEL POUIVA
Appellant
AND
THE KING
Respondent
Hearing: 29 August 2024
further Crown memoranda filed 4 September 2024 and 9
September 2024Appearances:
C G Nolan and D Steyn for Appellant P J Brand for Respondent
Judgment:
10 September 2024
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
POUIVA v R [2024] NZHC 2598 [10 September 2024]
Introduction
[1] Nigel Pouiva pleaded guilty to discharging a firearm with reckless disregard for safety,1 unlawful possession of a firearm,2 failing to carry out obligations in relation to computer search,3 and common assault.4 Mr Pouiva was sentenced by Judge Lynch on 21 May 2024 to two years and nine months’ imprisonment.5
[2]Mr Pouiva appeals his sentence. He says it is manifestly excessive.
The facts
[3] On 19 March 2022, the victim was at a carwash in Paraparaumu. Mr Pouiva was a passenger in a car that arrived at the same carwash. That car parked in front of the victim’s vehicle preventing him from driving away. Mr Pouiva left his car and approached the victim. He then “loomed over” the victim in a threatening manner. The victim tried to run away but Mr Pouiva grabbed him by the left arm. The victim attempted to throw his car keys away, but Mr Pouiva grabbed hold of him and threw him to the ground.
[4] When the victim got back to his feet and tried to return to his vehicle Mr Pouiva blocked his path and punched him in the face. The blow caused him to momentarily lose his balance and walk back a few steps. Mr Pouiva then collected the victim’s keys and left in the victim’s car. The victim was not entitled to be in possession of the car.
[5] On 6 June 2022, Mr Pouiva and his co-defendant, Mr Hurinui were driving along Bower Avenue in Christchurch. Bower Avenue is a residential street. Mr Pouiva and Mr Hurinui were members of the Mongrel Mob. The victim, a former member of the gang, was riding his scooter along the footpath of Bower Avenue. The appellant and his co-defendant recognised the victim and pulled over and stopped next to him.
1 Crimes Act 1961, s 188(2). Maximum penalty: seven years’ imprisonment.
2 Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment.
3 Search and Surveillance Act 2012, s 178. Maximum penalty: three months’ imprisonment.
4 Crimes Act 1961, s 196. Maximum penalty: Maximum penalty: one year’s imprisonment.
5 R v Pouiva [2024] NZDC 11299.
Mr Hurinui, the victim’s brother, got out of the car and approached him. Mr Pouiva remained in the vehicle but wound down the window.
[6] There was an argument during which the victim stated “Just shoot me” before attempting to ride off on his scooter. Mr Hurinui went to remove a knife concealed down the front of his trousers and at the same time Mr Pouiva pointed a shotgun out of the front passenger window, aiming in the direction of Mr Phillips, and fired a shot. Consequently, the victim had a single shotgun pellet embedded in his left cheek which was unable to be surgically removed.
[7] Mr Pouiva was arrested, and his cell phone was seized. Mr Pouiva refused to provide the PIN code for his phone.
Sentencing decision
[8] The Judge took the lead offence as the charge of discharging a firearm with reckless disregard. Aggravating this offending, said the Judge, was that a shotgun was used, the shot was fired within a residential setting, there were two offenders, a gang element, and the injury to the victim.
[9] The Judge considered the offending was factually closest to that in R v McAllister6 and R v Kovaleski7 and adopted a starting point of four years’ imprisonment. The Judge applied an uplift of six months for the unlawful possession of a firearm, one month for failing to carry out search obligations, and four months for the assault – a global starting point of four years and 11 months’ imprisonment.
[10] The Judge applied a three per cent uplift for Mr Pouiva’s criminal history; and deductions of 15 per cent for guilty pleas; 10 per cent for background factors as set out in a 27 report; 7.5 per cent for rehabilitative prospects and five per cent for remorse. A further five months was deducted for time spent on electronically monitored (EM) bail. The end sentence was two years and nine months’ imprisonment.
6 McAllister v R [2023] NZHC 3705.
7 R v Kovaleski [2022] NZHC 2654.
Law on appeal
[11] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the Court must dismiss the appeal.9
[12] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.10 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11
Submissions
Appellant submissions
[13] Mr Nolan and Ms Steyn appeared on behalf of Mr Pouiva. Mr Nolan adopted the written submissions filed by trial counsel, Ms Beaton KC. Mr Nolan submits the starting point adopted by the Judge was too high. Counsel contends the appellant’s offending is less serious than that in the two cases relied on by the Judge. Mr Nolan points to Stirling v Police12 and Sharifi v R13 where, on charges of discharging an air rifle at a person with reckless disregard, starting points of two years, nine months’ and three years’ imprisonment were adopted. He submits the appellant’s offending falls between those cases and the two relied on by the Judge.
[14] Mr Nolan submits the tariff decision of Nuku v R14 and the cases involving wounding or injuring with reckless disregard provide guidance. He submits Mr Pouiva’s offending would likely fall in the top of band two (starting point of up to three years) or low-end band three (starting point of two years up to the statutory
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
11 Ripia v R [2011] NZCA 101 at [15].
12 Stirling v Police HC Nelson CRI-2011-442-37, 8 December 2011.
13 Sharifi v R [2024] NZHC 672.
14 Nuku v R [2012] NZCA 584.
maximum). Overall Mr Nolan submits a starting point of no more than three and a half years for discharging the firearm with reckless disregard was appropriate.
[15] Each of the uplifts imposed is challenged on appeal. The six-month uplift imposed for the unlawful possession of a firearm is said to have an element of double counting. A conviction and discharge is said to be more appropriate for the PIN code offence. The four-month uplift for the assault is said to be manifestly excessive, counsel proposes a two-month uplift as more appropriate.
[16] Mr Nolan says a global starting point of three years and eight months’ imprisonment should have been imposed.
[17] Mr Pouiva also challenges the credits allowed. It is submitted that a deduction of at least 20 per cent and up to 25 per cent was appropriate to reflect that the appellant had pleaded to a reduced charge immediately after the original charge of wounding with intent was amended. Counsel submits that a combined deduction of 30 per cent should have been allowed for personal factors and rehabilitation, with reliance on the “systematic deprivation and trauma” in the appellant’s background and the linkage with his offending.
[18] Finally, Mr Nolan submits the Judge failed to have regard to the parity reasonably required with the sentence imposed on the appellant’s co-offender, Mr Hurinui. The Judge had fixed a three-year six-month starting point in relation to Mr Hurinui’s offending.
[19] Mr Nolan submits the end sentence should have been no more than two years’ imprisonment, and then commuted to home detention.
Respondent submissions
[20] Mr Brand, for the Crown submits a four-year starting point, having regard to the aggravating factors of the offending, could be seen as lenient. In support he refers to the factual scenarios and starting points adopted in McAllister, Kovalenski and
R v Templeton,15 the cases relied on by the Crown in the District Court. Mr Brand submits a feature of the appellant’s offending is that he discharged a shot gun on a main street with the potential for others to be injured or worse. He highlights the victim was struck by the shot and had a shotgun pellet embedded in his cheek. These factors, Mr Brand submits, mean the appellant’s offending could be seen as more serious than McAllister and Kovaleski. He submits that comparing the starting point to Stirling and Sharifi is not helpful as the lead offence in both cases was discharging an airgun.
[21] With regards to the uplift for unlawfully possessing a firearm, counsel submits no double counting occurred. He contends, notwithstanding the acknowledged connection to the lead offending, a starting point of two years could have been adopted for the firearm offending alone. Mr Brand submits that to interfere with the uplifts for the assault and PIN code offence could be seen as tinkering.
[22] As for the challenge to the credits allowed, Mr Brand contends the circumstances relied on by the appellant as relevant to his moral culpability were appropriately recognised by the Judge. He submits there is limited causative connection between Mr Pouiva’s personal background and the offending.
[23] In a memorandum filed following the hearing of the appeal, Mr Brand confirms the Crown proposed a 20 per cent deduction for guilty pleas and accepts the pleas to the reduced charges were entered at the first reasonable opportunity.
[24] As for parity, Mr Brand accepts that Mr Hurinui exited the vehicle first and was the initial aggressor, but stresses that it was the appellant who elevated the intensity of the confrontation by discharging the shotgun. He submits parity between the two offenders was not necessary.
15 R v Templeton CA460/05, 6 July 2006.
Discussion
Starting point
[25] There are several aggravating features of Mr Pouiva’s offending. It engaged gang overtones, a co-offender, an injury and offending in a residential area. The firearm used was a sawn-off shotgun,16 a weapon that has no lawful purpose.
[26] As the Judge observed, there is no tariff decision for the offence of discharging a firearm with reckless disregard. Comparing cases and aggravating factors presents challenges given the circumstances can vary so widely. The Judge placed particular reliance on the starting point taken in McAllister and Kovaleski. It is necessary to consider the facts of both cases.
[27] Mr McAllister was sentenced on the lead charge of recklessly discharging a firearm. His victim had arranged to purchase cannabis from Mr McAllister. On discovery that one of the notes used to pay for the drugs was counterfeit, Mr McAllister was driven to the victim’s address by his daughter’s associate. His daughter was present. The victim was at home with his partner, her three children and a friend of her daughter. Mr McAllister entered the property, rang the doorbell holding a sawn-off shotgun concealed in a bag. The victim came outside. Mr McAllister yelled at him. Mr McAllister then stood on the fence at the property, took out the shotgun, aimed towards the victim who was on the front doorstep of his home. When the victim stepped back into the house, Mr McAllister fired the shotgun, shattering a window. The curtains were drawn, meaning he could not have been aware whether anyone was in the room he shot at. No-one was physically injured.
[28] Mr Kovaleski pleaded guilty to two charges of discharging a firearm with reckless disregard. He was a passenger in a car being driven by an associate. The vehicle was driving at 30 kilometres an hour in a 100 kilometre per hour zone. Because of the slow speed of the vehicle, another car approached and passed the offender and his associate. Within the overtaking vehicle was the driver, his partner and two young children. Mr Kovaleski’s associate began tailgating that car.
16 The sentencing Judge had wrongly understood that Mr Pouiva used an unmodified firearm.
Mr Kovaleski then leant out of the window, pointed a firearm at the car and discharged the firearm twice. Both shots hit the car. One bullet lodged in the car’s frame, a short distance from the head of one of the children.
[29] Mr Nolan submits Mr Pouiva’s offence was less serious than either case. He says in McAllister there was significant premeditation, a modified firearm and children were present within the house. I accept that the level of premeditation in McAllister was a significant aggravating factor of that offending that does not apply to Mr Pouiva. But Mr Pouiva’s offending was aggravated by the presence of a co-offender, the gang overtones and the fact the victim was struck and injured, factors not present in McAllister.
[30] Mr Nolan highlights that in Kovaleski the offender tailgated a vehicle containing children, discharged the firearm twice and could have caused serious injury to a child. His offending involved a co-offender and vulnerable victims. But again, there was no gang dimension to that offending and no actual injury was caused.
[31] The third case relied on by the Crown to support the four-year starting point, is R v Templeton.17 Three appellants travelled to the victim’s address with weapons as part of a retaliatory raid. Mr Brooking, the leader of the offending was the driver. The complainant anticipated the raid and chased the vehicle. During the chase, a series of shots were fired at the complainants’ vehicle. No one was hit. The Court of Appeal upheld a starting point of five years’ imprisonment for Mr Brooking on the lead charge of discharging a firearm with reckless disregard. The Court also upheld the starting points of Mr Templeton and a Mr Roche of four and a half years and three and a half years respectively in relation to their involvement.
[32] In Stirling v Police, the offender was charged with discharging an air rifle at a person with reckless disregard during a road rage incident.18 A pellet lodged in the victim’s arm and could not be removed. The aggravating factors were the deliberate use of the rifle, the risk of injury and the actual harm caused. A starting point of two years and nine months’ imprisonment was upheld on appeal. The same charge
17 R v Templeton CA460/05, 6 July 2006.
18 Stirling v Police HC Nelson CRI-2011-442-37, 8 December 2011.
was the lead offence in Sharifi v R.19 The victim was walking home when the defendant drove past, did a U-turn, and then came back and discharged an airgun multiple times in the direction of the victim. One of the pellets struck the victim, lodging to a depth that it could not be removed. A starting point of three years’ imprisonment was adopted.
[33] I consider the potential harm associated with a sawn-off shot gun and the inherent criminality of that weapon justifies a higher starting point than a reckless disregard offence committed using an air rifle.
[34] I am satisfied the Judge did not err in determining that Mr Pouiva’s offending was comparable to that of McAllister and Kovaleski. Having reviewed the cases cited by counsel and having identified the aggravating factors of Mr Pouiva’s offending, I am satisfied that the four-year starting point adopted by the Judge was within range.
Uplifts
[35] Mr Nolan submits no uplift was required because the possession and subsequent use of the firearm was so closely connected as to be treated as a single offence.
[36] I do not accept that submission. If Mr Pouiva and Mr Hurinui had set out on the afternoon of the offending in a vehicle with a loaded shotgun looking to frighten or otherwise harm the victim, the Judge might have considered it inappropriate to impose a discrete uplift for the possession charge. But, as Mr Nolan submits in mitigation, the use of the firearm was not premeditated. What that means is Mr Pouiva was driving the streets of Christchurch with a loaded sawn-off shotgun, committing the serious offence of unlawfully possessing a shotgun quite independently of the firing of that weapon when they came across the victim.
[37] Loaded firearm offending in combination with gangs is serious offending and requires a strong and deterrent sentence. The observation of the Court of Appeal in R v Richardson is apposite:20
19 Sharifi v R [2024] NZHC 672.
20 R v Richardson CA450/02 25 March 2023 at [33].
Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society's condemnation of their availability because of the potential for danger from their possession.
[38] Standing alone, a sentence of two years imprisonment could have been imposed. I consider the uplift of six months to be within range.
[39] Similarly, I consider the uplift of one month to reflect Mr Pouiva’s refusal to provide the PIN code for his cell phone to be both within range and appropriate. Mr Nolan submits Mr Pouiva should have been convicted and discharged. Such an approach would give no teeth to that offence.
[40] Finally, Mr Nolan challenges the four-month uplift for the assault. The maximum penalty for that offence is one years’ imprisonment. The assault itself involved Mr Pouiva grabbing the victim, throwing him to the ground and then, once the victim had got back to his feet, punching him once, striking him in the face. The summary of facts does not record the injuries being suffered by the victim. Mr Nolan submits that if considered alone, the assault would not have justified a sentence of imprisonment.
[41] The assault was quite discrete offending. It has gang overtones. The assault was gratuitous, there being no words exchanged. Four months was stern and at the upper end of the available range, but I am not persuaded that starting point was too high.
Background factors
[42] Mr Nolan submits that the 17.5 per cent discount for personal factors and rehabilitation does not give adequate weight to the “systematic deprivation and trauma” in the appellant’s background and the linkage with his offending.
[43] I acknowledge that Mr Pouiva’s childhood was unstable, frightening, and traumatic. He sought belonging in the Mongrel Mob which paved the way for his involvement in the criminal justice system. The cultural report outlines experiences of physical, psychological, and other abuse. The appellant says he has now left the
gang, handing over his motorcycle as a “tax”, has begun exercising and re-engaging with his faith and has made some attempt to start counselling. It is clear the appellant has made positive changes in his life and his background has a clear causative link to his offending.
[44] In my view the deduction allowed for background factors should not be considered independently of the five per cent allowed for remorse. The appellant’s remorse and his rehabilitative prospects are closely aligned with his decision to turn his back on the gang and reunite with his family and church.
[45] While I accept that it was open to the Judge to allow a greater deduction, the combined 22.5 per cent was within range.
Guilty Pleas
[46] The Judge understood that “the pleas came after the Crown disclosed particularly incriminating phone calls between the two defendants and Crown offered to reduce the lead charge (which was originally wounding with intent to cause grievous bodily harm).” The Judge observed that the guilty plea to the charge of assault was entered after that charge was reduced from one of robbery, a reduction in charge level described by the Judge as generous.
[47] Counsel confirmed that the charge of robbery was reduced because the assault victim was not lawfully in possession of the vehicle he had been driving. It was not the victim’s vehicle. I infer that Mr Pouiva had a proprietary interest in the vehicle. The charge reduction reflected the evidence, it was not generous.
[48] As for the discharge of the shotgun, the Judge observed that Mr Pouiva had sought a sentence indication and that arrangements had been made for trial, necessarily leading to expenditure of time and resources. With reference to Hessell v R21 the Judge resolved the appellant should not receive the double benefit of a reduced charge and full guilty plea discount.
21 Hessell v R [2010] NZSC 135 at [62].
[49]An overall deduction of 15 per cent for guilty pleas was allowed.
[50] On appeal Mr Nolan took issue with the factual basis that gave rise to the guilty plea to the discharge of the firearm charge. Mr Brand, who had not appeared on behalf of the Crown in the District Court, proposed that further investigations be undertaken with a view to a joint memorandum being filed. Separate memorandum has since been filed.
[51] Mr Brand’s memorandum confirms that Mr Pouiva was initially facing a charge of wounding with intent to cause grievous bodily harm22 and an alternative charge of wounding with reckless disregard.23 He says the Crown had proposed a 20 per cent deduction. Mr Brand acknowledges that a synopsis of phone calls between the two defendants, filed as part of the Crown case, played no part in the decision to amend the charge. He accepts the Judge was wrong to believe that new evidence led to the plea resolution.
[52]Ms Beaton has today filed a further memorandum. She says:
(a)Mr Pouiva had sought a sentence indication on the alternative charge but was told the Crown would not accept a plea to that charge.
(b)In November 2022, Mr Pouiva then sought and was given a sentence indication on the more serious charge. Before responding to that indication, the Crown invited Mr Pouiva to plead to a charge of injuring with intent to cause GBH. That offer was declined.
(c)In August 2023 Crown counsel emailed counsel for both defendants inviting a guilty plea to a charge of discharging a firearm with intent to injure. The Crown email read “The Crown would have to accept that this is the first time that this charge has been offered in terms of guilty plea credit”.
22 Crimes Act 1961, s 188(1). Maximum penalty: 14 years’ imprisonment.
23 Section 188(2). Maximum penalty: seven years’ imprisonment.
(d)Mr Pouiva agreed to plead guilty but only to discharging with reckless disregard. The Crown agreed. A guilty plea was entered within days.
[53] I have the benefit of further material that clarifies the position as regards the reduction of the charges and the entry of guilty pleas. I am satisfied a guilty plea credit that recognised the guilty pleas to the reduced charges were entered at the first reasonable opportunity would not allow Mr Pouiva to “double benefit” from a reduction in charge and a guilty plea credit. The reduced charges were proposed by the prosecution, no doubt reflecting the available evidence. I consider the appropriate guilty plea credit to be 25 per cent.
Parity
[54] The District Court Judge adopted a starting point for Mr Pouiva that was six months higher than that adopted for his co-defendant, Mr Hurinui. The Judge relied on the reasoning of the Court of Appeal in Gathergood v R,24 a case involving similar facts in that it dealt with one offender who had discharged a firearm from a car and a co-defendant who was driving the car.
[55] As I have discussed, it was not suggested that Mr Pouiva’s offending was premeditated. If that were not the case, the sentencing Judge would have been far more inclined to treat both Mr Pouiva and Mr Hurinui as equally culpable. The meeting with the victim was unplanned. Whilst Mr Hurinui must have known Mr Pouiva had a loaded shotgun in the car, it was not suggested he knew Mr Pouiva was going to discharge the shotgun at the victim or that he did anything to encourage Mr Pouiva to do so. Mr Nolan rightly describes Mr Hurinui as being the primary aggressor. But his aggressive conduct did not involve physical violence. It was Mr Pouiva who resolved to fire the shot. In that circumstance the Judge did not err in adopting a higher starting point for Mr Pouiva.
24 Gathergood v R [2010] NZCA 350.
Would home detention be appropriate?
[56] I have determined that the least restrictive appropriate sentence was a sentence longer than two years imprisonment. Mr Pouiva was therefore not eligible for a sentence of home detention. Given a primary submission advanced on his behalf is that home detention was the least restrictive appropriate sentence, I make the following observation.
[57] The starting point in considering home detention is s 15A of the Sentencing Act 2002 which provides that home detention can only be imposed if the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and the court would otherwise sentence the offender to a short-term sentence of imprisonment.
[58] The central sentencing purposes at play are denunciation, deterrence and holding the offender accountable for the offending. Mr Pouiva’s offending involved gang violence, the discharging of a shotgun in daylight hours in a residential setting and a victim being shot and injured. Whilst there is no single category of cases for which a sentence of home detention might be seen as unavailable, the relevant sentencing purposes and principles would not in my view not permit an end sentence short of imprisonment.
Result
[59] I am satisfied the end sentence imposed was manifestly excessive. The appeal is allowed. The sentence of two years and nine months’ imprisonment imposed on the charge of discharging a firearm with reckless disregard is quashed and substituted with a sentence of two years and four months’ imprisonment. All other sentences remain the same.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
K J Beaton KC, Christchurch
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