Pabirowski v The Queen - [2020] NZCA 593

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA24/2020
[2020] NZCA 593

BETWEEN	RAY STANLEY PABIROWSKI Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2020
Court:	Miller, Brewer and Moore JJ
Counsel:	JAG Moroney and JPR Scott for Appellant MRL Davie for Respondent
Judgment:	25 November 2020 at 10.30am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Pabirowski appeals the sentence of four years and nine months’ imprisonment imposed on him by Judge Orchard on 21 November 2019.[1] He submits the sentence is manifestly excessive and should have been in the range of three years and three months to three years and nine months’ imprisonment.
[1]R v Pabirowski [2019] NZDC 23473.
We must allow the appeal if we are satisfied that, for any reason, there is an error in Judge Orchard’s sentence and that a different sentence should be imposed.[2]

Factual background

[2]Criminal Procedure Act 2011, s 250.

Mr Pabirowski was found guilty by a jury on one charge of causing grievous bodily harm with intent to cause grievous bodily harm.[3] The maximum sentence is 14 years’ imprisonment.
[3]Crimes Act 1961, s 188(1).
We draw the facts of Mr Pabirowski’s offending from the Judge’s sentencing notes:
(a)On 14 November 2017, Mr Pabirowski was at a hotel in Northland. He had been asked to help out with security at a 21st birthday party being held there.
(b)The victim, Mr Wikitera, arrived at the hotel and Mr Pabirowski asked him for identification even though he was a man in his 50s. There was an undercurrent of tension as a result of that.
(c)Later in the evening there was an exchange between Mr Wikitera and Mr Pabirowski about the earlier request for identification. Mr Wikitera’s evidence was that Mr Pabirowski challenged him to go outside for a fight. The closed-circuit television footage showed Mr Pabirowski leaving momentarily and then returning having removed his jacket. Mr Wikitera and Mr Pabirowski then fought or struggled and other people became involved. The two were pulled apart and the fight or struggle ceased.
(d)Mr Wikitera went to the men’s lavatories and is shown leaving them by closed-circuit television footage. The Judge remarked that at that stage Mr Wikitera was “perfectly able to walk and to stand and seems to be okay”.[4]
(e)The Judge’s description continues:
[7] … Then the camera shows you, beginning from the other end of the corridor, charging him down essentially, and what you did was you knocked him through the swing doors which were almost outside the men’s lavatory into another section of the corridor. He went flat on his back. It is quite obvious that at that stage he was helpless, probably unconscious, but if not unconscious, certainly in no position to defend himself and very much affected by what had happened.
[8] Witnesses then describe you stomping on his head and I think at least in one instance throwing punches at his head.…

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 Pabirowski v The Queen

Details

AGLC: Pabirowski v The Queen [2020] NZCA 593
Case: [2020] NZCA 593
Decision Date: 25 November 2020 at 10.30am

CaseChat Overview and Summary

Ray Stanley Pabirowski appeals against the sentence of four years and nine months’ imprisonment imposed on him by Judge Orchard following his conviction for causing grievous bodily harm with intent. Pabirowski argues that the sentence is manifestly excessive and should have been in the range of three years and three months to three years and nine months’ imprisonment. The court must allow the appeal if it is satisfied that there is an error in the sentence and that a different sentence should be imposed.

The court identified the aggravating features of the offence as including the premeditated nature of the attack, the attack being to the head, the victim's vulnerability, and the seriousness of the injuries inflicted. The court found that the combination of these aggravating factors placed the case at the lower end of band two, which is appropriate for offences involving violence at the lower end of the range of s 188(1) offences. The court disagreed with Pabirowski's argument that the aggravating factors overlap and that this reduces his culpability. The court found that the degree of violence used in the attack was inherently life-threatening and that the injuries inflicted were severe.

The court found that the sentence of four years and nine months’ imprisonment was not manifestly excessive. The Judge adopted a starting point which was within the range available to her, and the discount of three months’ imprisonment to take account of restrictive bail conditions was appropriate. The appeal was dismissed.

The final orders of the Court are that the appeal is dismissed.

Orders