NIGEL POUIVA AND THE KING - [2024] NZHC 2598

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 2024

Appearances:

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…

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.

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Details

Case: [2024] NZHC 2598
Decision Date: 10 September 2024

CaseChat Overview and Summary

Nigel Pouiva appealed his sentence of two years and nine months' imprisonment imposed by Judge Lynch for charges including discharging a firearm with reckless disregard for safety, unlawful possession of a firearm, failing to carry out obligations in relation to a computer search, and common assault. Pouiva argued the sentence was manifestly excessive. The High Court considered whether the sentence imposed was within the appropriate range and if not, what the appropriate sentence should be.

The court reviewed the starting point of four years' imprisonment set by Judge Lynch, considering it comparable to similar cases. The court noted the aggravating factors of Pouiva's offending, including the use of a sawn-off shotgun, gang overtones, and the presence of a co-offender. The court rejected arguments that the starting point was too high, affirming that it was within range. The court also considered the uplifts for unlawful possession of a firearm, refusal to provide a PIN code, and the assault, finding them appropriate. Regarding credits, the court allowed a 25 per cent deduction for guilty pleas to reduced charges, finding this appropriate given the circumstances. The court found the sentence was manifestly excessive and substituted it with a sentence of two years and four months' imprisonment for the charge of discharging a firearm with reckless disregard, while maintaining the other sentences.

Orders