Po'oi v The the King - [2022] NZHC 2603

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2022-476-10

[2022] NZHC 2603

BETWEEN
MAKA SIAOSI FAU’ESE PO’OI

Appellant

AND

THE KING

Respondent

Hearing: 28 September 2022

Appearances:

A C Trinder for Appellant

A-M McRae for Respondent

Judgment:

10 October 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 10 October 2022 at 10.15 am.

Registrar/Deputy Registrar Date:

FAU’ESE PO’OI v R [2022] NZHC 2603 [10 October 2022]

Introduction

[1] The appellant, Mr Maka Fau’ese Po’oi was sentenced to 27 months’ imprisonment in the District Court on 23 August 2022 on one charge of causing grievous bodily harm with intent to cause grievous bodily harm.1 He now appeals that sentence on the ground that it is manifestly excessive, in particular due to insufficient credit being given for his remorse and rehabilitative conduct.

Facts

[2] On 1 October 2021, Mr Fau’ese Po’oi and four colleagues were at a tavern in Timaru. The victim and their associate were also at the tavern.

[3] Around 11.30 pm the victim and his associate joined Mr Fau’ese Po’oi and his colleagues at their table and, after some interaction, a verbal altercation ensued between the victim and one of Mr Fau’ese Po’oi’s colleagues.

[4] Mr Fau’ese Po’oi stood up and walked around the table, approaching the victim from behind. Using the bottom of a beer glass, Mr Fau’ese Po’oi struck the victim in the side of the head. The victim reacted and a physical altercation involving approximately seven people ensued. At some point both the victim and Mr Fau’ese Po’oi ended up on the floor.

[5] Once back to their feet, Mr Fau’ese Po’oi punched the victim in the face, knocking him unconscious.

[6] As the victim lay unconscious on the floor, Mr Fau’ese Po’oi stood over him and punched him a further three times in the face before he was stopped by security.

[7] Mr Fau’ese Po’oi then went over to his colleagues and the victim’s associate, who were physically grappling. Mr Fau’ese Po’oi threw several punches and, after approximately 15 seconds, walked back over to the victim.

1 Crimes Act 1961, s 188(1): maximum penalty of 14 years’ imprisonment.

[8] As two patrons were attending to the unconscious victim and putting him into the recovery position, Mr Fau’ese Po’oi stood over him and punched him in the face.

[9] The victim spent the night in the intensive care unit and was released the following afternoon. He suffered a severely broken nose and a fractured cheekbone. A laceration to his forehead required sealing and he suffered bruising and swelling to his head. He was unable to return to work for two weeks due to concussion, and his victim impact statement records ongoing effects.

District Court decision

[10]At sentencing, the Judge adopted a starting point of 60 months’ imprisonment.

[11] A full discount of 25 per cent, equating to 15 months, was then given for Mr Fau’ese Po’oi’s guilty plea.

[12] Somewhat unusually (and…

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.

Keep reading for free

Create a free CaseChat account to read Po'oi v The the King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 2603
Decision Date: 10 October 2022

CaseChat Overview and Summary

The case of Fau'ese Po'oi v The King involved an appeal against the appellant's 27-month imprisonment sentence, imposed by the District Court for causing grievous bodily harm with intent. The appellant argued that the sentence was manifestly excessive due to insufficient credit being given for his remorse and rehabilitative conduct. The key legal issues the court had to decide were whether the sentencing Judge erred when considering the appropriate discounts for mitigating factors, and if so, whether this resulted in an end sentence that was manifestly excessive and required a different sentence to be imposed.

The court found that the sentencing Judge appropriately considered all relevant considerations when applying discounts for personal mitigating features. The court agreed with the Judge's assessment that a 15% discount for remorse, rehabilitative prospects, and the appellant's previous good character was appropriate. The court also agreed that the 15% discount for provocation and cultural factors was appropriate, as the Judge was attempting to explain how the appellant's programmed cognitive response to use violence to deal with perceived threats to himself and/or those he is close to was derived from being subject to abuse himself as a child.

The court concluded that the total discount adopted by the Judge was 55%, bringing the end sentence to 27 months' imprisonment. This was entirely appropriate in the circumstances of the case and was not, in the court's view, insufficient. The sentence imposed was not manifestly excessive or wrong in principle. The appeal was dismissed.

The final orders were that the appeal is dismissed.

Orders