Paekau v R

[2020] NZCA 332

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA82/2020
 [2020] NZCA 332

BETWEEN	LAWRENCE PAEKAU Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2020
Court:	French, Woolford and Dunningham JJ
Counsel:	G A Walsh and M J James for Appellant M L Wong for Respondent
Judgment:	6 August 2020 at 9 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe appeal is allowed.

C        The sentence of seven years’ imprisonment imposed on the charge of aggravated robbery is quashed and a sentence of six years and two months’ imprisonment is substituted. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

1. Following a jury trial in the District Court at Hamilton, Lawrence Paekau was found guilty of aggravated burglary, wounding with intent to cause grievous bodily harm and aggravated robbery.  On the morning of the trial, Mr Paekau pleaded guilty to unrelated charges of assault with a weapon, assault with intent to injure and escaping from lawful custody.

2. On 31 October 2019, Judge R G Marshall sentenced Mr Paekau to seven years’ imprisonment.[1]  Mr Paekau now appeals on the basis that the sentence is manifestly excessive, primarily because there was an arithmetical error in the overall calculation of the sentence.

   [1]R v Paekau [2019] NZDC 21900.

3. The appeal is filed out of time, but the application for an extension of time is not opposed.  There is a good reason for the delay: trial counsel had sought to address the error in the sentence in the District Court before bringing an appeal but was unable to do so.  The application for an extension of time is accordingly granted.

District Court sentence

1. After setting out the facts of the case established at trial, the Judge referred at some length to the background and family circumstances of Mr Paekau.  He had before him a cultural report filed under s 27 of the Sentencing Act 2002 which identified the significant disadvantages Mr Paekau had suffered during his upbringing which had led to his later gang affiliations and involvement in the criminal justice system.[2] 

   [2]At [6]–[10].

2. The Judge then turned to the gravity of the offending, for which he was of the view that a starting point of eight years’ imprisonment was appropriate.  The Judge then uplifted that by three months for the assaults and escaping from custody to which Mr Paekau had pleaded guilty and a further six months for Mr Paekau’s criminal history.  That left the Judge with an end starting point of eight years and nine months’ imprisonment.[3] 

   [3]At [16].

3. The Judge then allowed a 25 per cent discount for the factors set out in the s 27 report and a further five months for Mr Paekau’s motivation and rehabilitation.[4] 

   [4]At [17].

4. The Judge considered but rejected imposing a minimum term of imprisonment because the length of the prison term he was about to impose was, in his view, sufficient to hold him accountable for the harm done to the victim and the community.[5]  The Judge therefore sentenced Mr Paekau to seven years’ imprisonment on the charge of aggravated robbery, five years’ imprisonment on the charge of aggravated burglary, three years’ imprisonment on the charge of wounding with intent to cause grievous bodily harm and three months’ imprisonment on the assault and the escaping from custody charges.  All terms were concurrent, so the end sentence was one of seven years’ imprisonment.

Submissions

[5]At [19].

1. The primary contention for the appellant is that the end sentence was manifestly excessive because the seven year sentence of imprisonment imposed involved an error in the overall calculation of the sentence.  A further matter which Mr Paekau initially raised on appeal was that there was no discount given for his guilty pleas to the assault and escaping from custody charges.  However, at the hearing of the appeal, Mr Paekau formally abandoned this ground of appeal.

2. The Crown accepted that there was an arithmetical error in the overall calculation of the sentence and did not oppose the appeal being granted on this ground.

Analysis

1. It is unnecessary to review the facts of the offending as no issue is taken with the starting point, uplifts or discounts applied by the Judge.

2. We accept that there has been an arithmetical error by the Judge in the calculation of the end sentence.  A 25 per cent discount on the uplifted starting point of eight years and nine months’ imprisonment would bring the sentence down to six years and seven months’ imprisonment rather than seven years and five months’ imprisonment calculated by the Judge.  From the sentence of six years and seven months’ imprisonment the Judge deducted a further five months for Mr Paekau’s motivation and rehabilitation.  This brings the end sentence down to six years and two months’ imprisonment rather than the seven years’ imprisonment imposed by the Judge.  In terms of s 250 of the Criminal Procedure Act 2011 there has been an error (the incorrect calculation of the end sentence) and a different sentence should be imposed in order to give effect to the Judge’s intention.

3. This is a matter which could have been dealt with in the District Court.  Section 180 of the Criminal Procedure Act allows for the correction of an erroneous sentence by the sentencing court.  We understand that trial counsel filed a memorandum in the District Court on 6 November 2019, seeking to have the matter recalled, but did not receive a response.

Result

1. The application for an extension of time to appeal is granted.

2. The appeal is allowed.

3. The sentence of seven years’ imprisonment imposed on the charge of aggravated robbery is quashed and a sentence of six years and two months’ imprisonment is substituted. 

Solicitors:
Crown Law Office, Wellington for Respondent