Pani v R - [2011] NZCA 45

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/2010
[2011] NZCA 45

BETWEEN ADRIAN SOANE PANI
Appellant

AND THE QUEEN
Respondent

Hearing: 1 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: M J Dyhrberg and P J Barrowclough for Appellant
S B Edwards for Respondent

Judgment: 4 March 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Venning J)

Introduction

Following his guilty pleas to charges of aggravated robbery and assault with a weapon Mr Pani was sentenced by Judge Blackie to five years three months’ imprisonment. He appeals against that sentence.

The offending

One morning in May 2009 the appellant and an associate Mr Elia entered the victim’s home. They smashed their way into his bedroom. The appellant then set upon the victim with a wooden baseball bat. He struck the complainant repeatedly around the head and upper body whilst his associate screamed “Where’s all the money”? The victim held his arms up around his head to protect himself from the blows. He suffered a severely bruised elbow as a result.
The victim was then dragged from his bedroom, put into the back seat of his own car with the appellant and taken to an ATM machine some distance away. The appellant’s associate had a long knife with him in the front of the car. The victim was forced to withdraw $150. The victim was then returned to his home. There the appellant stood over him while the appellant’s associate searched the house and took a number of items, including a fashion branded bag, wrist watch, wallet, laptop and computer.
At the time of the offending the appellant was 20 years old. He is Tongan. His father died when he was three months old. His first stepfather was physically abusive towards him and his mother but the appellant says his current stepfather is good to him. When speaking to the probation officer the appellant gave an explanation for the offending. He said that he had fallen in with some Asian men who were involved in drug dealing. He was paid up to $3,000 a week to act as a runner for them. The appellant volunteered that the victim was targeted as being associated with the Asian gang and had taken a substantial amount of money from them without supplying the drugs. The appellant says that he and his co-offender were effectively contracted “muscle” whose job it was to obtain the drugs or retrieve the money. He was to be paid $4,000 for the job.

The sentence

Judge Blackie sentenced the appellant and his co-offender Mr Elia at the same time. The co-offender faced a number of further charges. Although Mr Elia was only 17 at the time of the offending, the Judge took a start point of 10 years’ imprisonment and imposed an end sentence of seven and a half years’ imprisonment. For the appellant, the Judge took a start point of seven years’ imprisonment after referring…

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 Pani v R

Details

AGLC: Pani v R [2011] NZCA 45
Case: [2011] NZCA 45
Decision Date: 4 March 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence brought by Adrian Soane Pani. Mr Pani was sentenced to five years and three months in prison by Judge Blackie following his guilty pleas to charges of aggravated robbery and assault with a weapon. The appellant contends that the sentence was manifestly excessive due to errors made by the trial judge in setting the starting point, giving insufficient weight to factors that detracted from the seriousness of the conduct and criminality, and in the discount. The court was required to determine if the starting point was set correctly, if the trial judge adequately considered the factors that detracted from the seriousness of the conduct, and if the discount applied was appropriate. The Court of Appeal found that the starting point was correct, as the circumstances of the offending were serious, involving a background of drug dealing and gangs. The court also found that the discount applied was appropriate, as the plea was not entered until the appellant's eighth appearance, following the dropping of a charge of kidnapping. The appeal against sentence is dismissed.

Orders