Paku v R - [2011] NZCA 269

IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/2011
[2011] NZCA 269

BETWEEN MARK HEMI PAKU
Appellant

AND THE QUEEN
Respondent

CA46/2011

AND BETWEEN IZIC PLACID
Appellant

AND THE QUEEN
Respondent

Hearing: 24 May 2011

Court: Glazebrook, Simon France and French JJ

Counsel: L L Heah for Appellant in CA1/2011
C Eason for Appellant in CA46/2011
K Laurenson for Respondent

Judgment: 14 June 2011 at 10.30 am

JUDGMENT OF THE COURT

A Mr Paku’s sentence appeal is dismissed.

BMr Placid’s sentence appeal is allowed. The existing sentence of five years three months is quashed, and in its place we impose a sentence of four years nine months’ imprisonment.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

The appellants were members of a burglary gang that preyed on residential properties in the North and West of Christchurch. In addition to the individual burglary and receiving charges to which each pleaded guilty at trial, the appellants also pleaded guilty to participation in an organised criminal group, being the wider burglary gang.
Mr Paku appeals the sentence of five years six months’ imprisonment imposed by Judge Saunders[1] on the basis that a starting point for the specific property offences of four and a half years was too high in itself, and was too high in comparison with his more culpable co‑offenders; that an uplift of 18 months to reflect the aggravating factors (being the organised criminal group charge; the fact that some of the offending was committed while Mr Paku was serving a sentence of home detention; and Mr Paku’s previous offending record) was excessive; and finally, that six months’ credit for the guilty plea and restrictive bail conditions was insufficient.
[1] R v Paku and Placid DC Christchurch CRI-2010-009-002372, 17 December 2010.
Mr Placid challenges the six month uplift imposed for his previous record. It is also submitted that, because of his comparative youth (the youngest of the group at 21), his restrictive bail conditions and his better prospects, he should have received more credit than the nine month deduction he did receive.
Given the quite different nature of the appeal grounds, we address each appeal separately.

Mr Paku’s appeal

As a result of discussions at the start of trial, a new indictment was proffered and the three remaining defendants (of an original group of eight) pleaded guilty. The charges to which Mr Paku pleaded were:
(a)knowing participation in an organised criminal group with Mr Placid, Robert Northe and Dang Hai Tran;
(b)four counts of burglary of residential properties. Three were committed on his own; the fourth with Messrs Placid and Tran. The goods taken from these burglaries were worth $15,000;
(c)four counts of receiving property from burglaries committed by others in the group. The value of the goods was $18,000.

(a) A six year starting point

Mr Paku’s six year starting point comes about by allotting four and a half years’ imprisonment for the property offences, adding 12 months for the organised criminal enterprise charge, and then six…

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 Paku v R

Details

AGLC: Paku v R [2011] NZCA 269
Case: [2011] NZCA 269
Decision Date: 14 June 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants, Mark Hemi Paku and Izic Placid, challenged their sentences imposed by the District Court. The court had to decide on the appeals against the sentences of five years six months and five years three months respectively, which were imposed for their participation in a burglary gang. The appellants raised issues about the starting points for their sentences, the disparities between their sentences and those of their co-offenders, and the credits given for their guilty pleas and bail conditions. The court dismissed Paku's appeal and allowed Placid's appeal, imposing a new sentence of four years nine months for Placid.

The court started by discussing the nature of the offending, which involved a burglary gang targeting residential properties in Christchurch. The court then addressed each appeal separately. Regarding Paku's appeal, the court found that a starting point of five and a half years for the offending was not excessive, considering the organised nature of the crime and the significant impact on the victims. The court also rejected the argument that Paku's culpability should be limited to his individual offences, emphasising the importance of holding each participant responsible for the wider scale of the offending. The court further found that there was no need to adjust the starting points to account for the differences in the number of offences and the value of the goods, as the culpability of each offender was not markedly different. Lastly, the court considered that the credits given for the guilty pleas and bail conditions were appropriate.

As for Placid's appeal, the court agreed that the six-month uplift for his prior history was incorrect, as the present offending represented a significant increase over his previous offences. The court also found that the discount of about 13 per cent for mitigating factors, such as his late plea and positive prospects, was not insufficient.

In conclusion, the Court of Appeal dismissed Paku's sentence appeal and allowed Placid's appeal, imposing a new sentence of four years nine months for Placid.

Orders