Poi v R

Case [2020] NZCA 312 27 July 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA379/2019
[2020] NZCA 312

BETWEEN	BRYAN PETERSON ALAN POI Appellant
AND	THE QUEEN Respondent

CA380/2019
BETWEEN	BRAD HOANI WILSON Appellant
AND	THE QUEEN Respondent

Hearing:	24 June 2020
Court:	Gilbert, Ellis and Katz JJ
Counsel:	T M Cooper for Appellant Poi S J Gray for Appellant Wilson M R L Davie for Respondent
Judgment:	27 July 2020 at 10 am

JUDGMENT OF THE COURT

AThe applications for an extension of time to appeal are granted.
BThe applications to adduce the s 27 reports are granted.
CThe appeals against sentence are allowed.
DMr Poi’s sentence of eight years’ imprisonment is quashed and substituted with a sentence of five years and 10 months’ imprisonment. The minimum period of imprisonment is quashed.
E Mr Wilson’s sentence of eight years and one month’s imprisonment is quashed and substituted with a sentence of six years and seven months’ imprisonment. The minimum period of imprisonment is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

Following a trial by jury in the District Court at Hamilton, Brad Wilson and Bryan Poi were both convicted on one charge of aggravated robbery. In addition, on the first day of trial, Mr Wilson pleaded guilty to a charge of driving while disqualified.
Mr Wilson was sentenced by Judge Cocurullo to eight years and one month’s imprisonment with a minimum period of imprisonment (MPI) of 50 per cent.[1] Mr Poi was sentenced to eight years imprisonment with an MPI of 50 per cent.[2] They both appeal on the basis that their sentences were manifestly excessive and that the imposition of an MPI was not justified.
[1]R v Wilson [2018] NZDC 22004 at [49] [District Court judgment].
[2]At [51].
The appeals were filed out of time. The Crown did not object to an extension, and we are satisfied that an extension is appropriate. The delays have been adequately explained and there is no prejudice to the Crown. We accordingly grant the applications for an extension of time to appeal.

Facts

In the early hours of 23 March 2017, Mr Wilson and Mr Poi, together with a third person whose identity is not known, travelled to a local property with the intention of robbing the occupant of cannabis. They covered their faces to avoid identification and entered the house. Two of the offenders carried weapons — a baseball bat and a metal bar or stick.
There were three people sleeping at the address: the target of the offending (who was believed to be in possession of cannabis), the target’s son, and the son’s partner. The victims were woken and had weapons brandished in their direction with demands that cannabis be handed over. The father was then taken from the living area by one of the offenders to gather up the available cannabis, which turned out to be minimal. At some stage a struggle broke out with the target’s son and he was hit on the…

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.

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Details

AGLC: Poi v The Queen [2020] NZCA 312
Case: [2020] NZCA 312
Decision Date: 27 July 2020 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants, Brad Wilson and Bryan Poi, challenged the sentences imposed on them for aggravated robbery and related offences. The appellants argued that their sentences were manifestly excessive and that the imposition of a minimum period of imprisonment (MPI) was unwarranted. The Crown did not oppose the appeals and conceded that the uplifts for previous convictions were unjustified. The court considered the appropriate starting point for the appellants’ sentences, the application of uplifts for previous convictions, and the appropriate discounts for personal circumstances. The court concluded that the starting point was appropriate but the uplifts for previous convictions were unjustified. The court also found that the discounts for personal circumstances were insufficient and granted leave to file new evidence on appeal regarding the appellants’ backgrounds and personal circumstances. Based on the new evidence, the court found that the appellants’ culpability for the offending was diminished by their background circumstances and that appropriate discounts for personal factors should have been applied. The court also found that an MPI was not warranted. The appeals against sentence were allowed, and the appellants’ sentences were substituted with new sentences. The MPIs were quashed.

Orders