Palamu v The Queen - [2021] NZHC 3105

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000403

[2021] NZHC 3105

BETWEEN THOMAS JUNIOR WIHAPI LAILE PALAMU
Appellant

AND

THE QUEEN

Respondent

Hearing: 15 November 2021

Appearances:

J M Scott for the Appellant

L E Nunweek for the Respondent

Judgment:

18 November 2021

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 18 November 2021 at 12:00 noon

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Auckland Meredith Connell, Auckland

PALAMU v R [2021] NZHC 3105 [18 November 2021]

Introduction

[1] On 13 August 2021, Judge Glubb sentenced Thomas Junior Palamu to 25 months’ imprisonment after Mr Palamu pleaded guilty to:1

(a)one charge of sexual connection with a young person,2 and

(b)one representative charge of indecent act on a young person.3

[2] Because Mr Palamu’s term of imprisonment is for longer than two years he is ineligible to apply to have the sentence converted to home detention; and he is automatically registered as a child sex offender pursuant to the terms of the Child Protection (Child Sex Offender Government Agency Regulations) Act 2016.

[3] The sentence was precisely that which the Judge had previously indicated he would impose at a sentence indication hearing on 21 April 2021.4 Nevertheless, Mr Palamu appeals his sentence on the grounds that it was manifestly excessive. He says the Judge failed to consider the availability of further discounts, having previously indicated at the sentence indication that he would hear further submissions in that regard.

[4] Mr Palamu says that with additional discounts his sentence should have been 24 months or less. He says further that his sentence should have been converted to one of home detention; and that he should not be ordered to be registered on the Child Sex Offender Register because he does not pose a risk to the lives or sexual safety of children.

Background

[5] I set out the factual and procedural background below. My summary of the factual background is taken from the Summary of Facts underlying the charges to which Mr Palamu has pleaded guilty. In support of his appeal Ms Scott, counsel for

1      R v Palamu [2021] NZDC 16608.
2      Crimes Act 1961, s 134(1); maximum penalty 10 years’ imprisonment.
3      Crimes Act 1961, s 134(3); maximum penalty seven years’ imprisonment.
4      R v Palamu DC Manukau CRI-2020-004-007057, 21 April 2021 [Sentence Indication].

Ms Palamu, emphasises that he accepts responsibility for the matters described in that Summary.

The offending

[6] The complainant is Mr Palamu’s ex-partner’s cousin. She was 13 years’ old at the time of the offending. Mr Palamu was 37 years’ old. The complainant used to stay regularly at Mr Palamu and his ex-partner’s house and babysit their daughter.

[7] In late December 2019 the complainant got her own cellphone. Mr Palamu obtained her number. He began texting her. They exchanged frequent text messages and phone calls between 24 December 2019 and 27 January 2020. Throughout January, the text messages from Mr Palamu…

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 Palamu v The Queen

Details

AGLC: Palamu v The Queen [2021] NZHC 3105
Case: [2021] NZHC 3105
Decision Date: 18 November 2021

CaseChat Overview and Summary

Thomas Junior Wihapi Laile Palamu appeals his sentence of 25 months’ imprisonment for sexual connection with a young person and indecent act on a young person, arguing it is manifestly excessive. The appeal was heard by Robinson J, who found that the sentence was not manifestly excessive. The appellant’s counsel argued that the sentence imposed was manifestly excessive because the sentencing judge did not take into account the appellant’s low risk of re-offending. The judge, however, found that the appellant’s expressions of remorse were not tangible enough to warrant a discount beyond the 25% discount for the guilty plea. Furthermore, the judge found that it was open to the sentencing judge not to apply any further discounts beyond the 40% he had already granted. Therefore, the appeal was dismissed.

This case is a useful reminder that the court should not ‘tinker’ with a sentence on appeal, and that it is not the court’s function to do so. The court found that the sentence was not manifestly excessive and was, in fact, at the lower end of available sentences having regard to the circumstances of the offending and the relevant sentencing principles.

Orders