Pauu v The Queen - [2011] NZCA 313

IN THE COURT OF APPEAL OF NEW ZEALAND

CA85/2011
[2011] NZCA 313

BETWEEN RANGI ROY PAUU
Appellant

AND THE QUEEN
Respondent

Court: Randerson, Stevens and Wild JJ

Counsel: K Maxwell for Appellant
S B Edwards for Respondent

Judgment: 15 July 2011 at 11.00 am

On the papers

JUDGMENT OF THE COURT

A The application to extend the time for appealing is granted.

BThe appeal is allowed in part to the extent that the minimum period of imprisonment of five years imposed in the District Court is quashed and replaced with a minimum period of imprisonment of three years and nine months.
CThe appeal against sentence is in all other respects dismissed.
DA copy of this judgment is to be sent by the Registrar to the co-offender Lokenitama Filipo and his counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

During the night of 17 March 2010, the appellant, Mr Pauu, and two co‑offenders, Messrs Pomare and Filipo, broke into a farmhouse occupied by an elderly woman and her daughter, aged in their 70s and 40s respectively. The men were heavily disguised and armed with knives. They tied the women up, ransacked the house and stole at least $23,000 worth of property, including irreplaceable jewellery of considerable sentimental value.
The appellant and his co-offenders all pleaded guilty in the District Court to a charge of aggravated robbery. On 9 August 2010, Judge Winter sentenced the appellant and his two co-offenders to a term of seven and a half years’ imprisonment, after allowing each a discount of one third for their early guilty pleas from a common starting point of 10 years’ imprisonment uplifted for aggravating factors by one and a half years.[1] Each offender was ordered to serve a minimum period of imprisonment (MPI) of five years’ imprisonment (two-thirds of the sentence).
[1] R v Pauu DC Pukekohe CRI-2010-057-654, 9 August 2010.
One of the co-offenders, Mr Pomare, filed an appeal against sentence. In a judgment delivered on 21 March 2011,[2] this Court allowed the appeal in respect of the MPI, which was quashed and replaced with an MPI of three years and nine months’ imprisonment (50 per cent of the sentence). In all other respects the appeal was dismissed.
[2] Pomare v R [2011] NZCA 83.
The appellant appeals against his sentence, contending broadly that the sentence was manifestly excessive. In particular he alleges that the sentencing Judge erred by:
(a)adopting a starting point that was too high;
(b)applying a discount for the early guilty plea that was too low;
(c)imposing a minimum period of imprisonment.
The appeal was filed well out of time. There is no opposition from the Crown to an extension of time. The time for filing the appeal is extended accordingly.

Sentencing appeal of Mr Pomare

This Court was satisfied that the Judge was correct to sentence all three offenders on the basis that their culpability was the same.[3] It also rejected the argument that the starting point of ten years was too…

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 Pauu v The Queen

Details

AGLC: Pauu v The Queen [2011] NZCA 313
Case: [2011] NZCA 313
Decision Date: 15 July 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Rangi Roy Pauu against his sentence for aggravated robbery. Pauu, along with two co-offenders, had broken into a farmhouse, tied up an elderly woman and her daughter, and stolen valuables. Pauu appealed the sentence, which included a minimum period of imprisonment (MPI) of five years. The appeal was filed out of time, but the court granted an extension. The legal issues before the court were whether the starting point, discount for an early guilty plea, and imposition of an MPI were correct.

The court found that the starting point and discount for the early guilty plea were appropriate. However, the court found that the imposition of a five-year MPI was excessive, as the sentencing judge had not adequately considered the mitigating factors. The court found that the appropriate MPI should be 50 per cent of the sentence, which is three years and nine months. The appeal was allowed in part to replace the five-year MPI with a three-year and nine-month MPI, but dismissed in all other respects. The court also ordered that a copy of the judgment be sent to the co-offender Lokenitama Filipo and his counsel.

The Court of Appeal of New Zealand allowed the appeal in part, replacing the five-year MPI with a three-year and nine-month MPI, but dismissed the appeal in all other respects. The court found that the starting point and discount for the early guilty plea were appropriate, but the imposition of a five-year MPI was excessive. The court found that the appropriate MPI should be 50 per cent of the sentence, which is three years and nine months. The court agreed with the respondent that the reasoning in the earlier appeal of Mr Pomare was equally applicable to Pauu's appeal. The court also ordered that a copy of the judgment be sent to the co-offender Lokenitama Filipo and his counsel.

Orders