Poi v R
[2020] NZCA 312
•27 July 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA379/2019 [2020] NZCA 312 |
| BETWEEN | BRYAN PETERSON ALAN POI |
| AND | THE QUEEN |
| CA380/2019 | ||
| BETWEEN | BRAD HOANI WILSON | |
| AND | THE QUEEN | |
| Hearing: | 24 June 2020 |
Court: | Gilbert, Ellis and Katz JJ |
Counsel: | T M Cooper for Appellant Poi |
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 foot with the baseball bat. Fortunately, he did not suffer any lasting injury. Although no firearm was seen or used, the offenders led the victims to believe that the son’s partner would be shot if they did not co-operate. Not surprisingly, the victims were traumatised by this experience, as is apparent from their victim impact statements.
As the offenders left the scene one of the victims was able to note down the registration number of their vehicle. This information led the police to Mr Poi and Mr Wilson.
District Court sentencing
At sentencing, the Judge described the offending as “very serious” and identified the following aggravating factors: premeditation and planning, multiple offenders, forced entry, entry into a home, actual and threatened violence, use of weapons, and stolen property.[3] He referred to the guideline judgment for aggravated robbery in R v Mako, which relevantly states:[4]
[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
[3]At [13].
[4]R v Mako [2000] 2 NZLR 170 (CA).
The home invasion provisions referred to by the Court in Mako have now been repealed.[5] Nonetheless, the unlawful entry into a private home remains an aggravating factor for sentencing purposes.[6]
[5]The Crimes (Home Invasion) Amendment Act 1999, repealed by s 164 of the Sentencing Act 2002.
[6]Sentencing Act, s 9(1)(b).
The Judge adopted a starting point of eight years’ imprisonment for both offenders. He then uplifted that starting point by three months for Mr Wilson, to reflect his conviction for driving while disqualified, and by another four months to reflect his previous convictions. The Judge then reduced Mr Wilson’s sentence by six months to take account of his personal circumstances. This resulted in an end sentence of eight years and one month’s imprisonment.[7]
[7]District Court judgment, above n 1, at [48]–[49].
For Mr Poi, the Judge increased his eight year starting point by three months to reflect his previous convictions, and then reduced the sentence by three months to reflect Mr Poi’s challenging personal circumstances and the time he had spent on electronically monitored bail (EM bail). This resulted in an end sentence of eight years’ imprisonment.[8]
[8]At [50]–[51].
A minimum period of imprisonment of 50 per cent was imposed on both offenders.
Grounds of appeal
Mr Wilson and Mr Poi appeal on the basis that their sentences are manifestly excessive. They both assert that the discounts afforded for their backgrounds and personal mitigating circumstances were insufficient, and the imposition of an MPI was unwarranted. In addition, Mr Wilson challenges the eight-year starting point adopted by the Judge. However, he does not take issue with the three-month uplift in respect of the driving while disqualified charge.
We also heard oral submissions on the appropriateness of the uplifts that were applied for the appellants’ previous convictions. Mr Davie, for the Crown, conceded that an uplift for previous convictions could not be justified for either appellant. That was an appropriate concession in our view, for the reasons we set out below.
Was the starting point too high?
Submissions for Mr Wilson
Ms Gray, for Mr Wilson, submitted that the eight-year starting point adopted by the Judge was too high and that a six and a half to seven year starting point should have been adopted.
Ms Gray acknowledged that this would be below the lowest starting point envisaged by Mako of seven years’ imprisonment. She submitted, however, that as Mako only sets out “guidelines”, these can be departed from in appropriate cases. She referred to the High Court decision of Peke-Meihana v R as an example of a case in which the court had been willing to depart from the Mako guidelines.[9] In that case Mallon J adopted a starting point of five years and six months’ imprisonment. The defendants were also given very significant discounts, which brought their end sentences to two years’ imprisonment, enabling a sentence of home detention to be imposed.[10] Ms Gray also referred to Kingi v R[11] and Currie v R.[12]
Discussion
[9]Peke-Meihana v R [2019] NZHC 642.
[10]At [40]–[41].
[11]Kingi v R [2013] NZCA 393.
[12]Currie v R [2010] NZCA 449.
Mako generally requires a starting point of at least seven years imprisonment for home invasion offending. In 2015 this Court observed in Tereora v R that the lowest starting point for home invasion they could find on record was six years, in quite unusual circumstances.[13] The Court described the six and a half year starting point adopted in that case as being at the very bottom of the possible range.[14] Since then, a starting point of five years and six months’ imprisonment has been adopted by the High Court in Peke‑Meihana v R.[15] That case was also very unusual, however. It involved young offenders, just outside of the Youth Court jurisdiction. One offender was still at school. The Judge clearly (and understandably) did not consider prison the appropriate sentencing outcome.[16] Given the unique context of that case, it does not provide helpful guidance as to the appropriate starting point in this case.
[13]Tereora v R [2015] NZCA 120 at [30]–[31].
[14]At [29].
[15]Peke-Meihana v R, above n 9.
[16]At [38].
Starting points upheld or imposed by this Court in recent years for aggravated robberies with an element of home invasion have generally ranged from six and a half years to ten years.[17] We consider the offending in this case to be less serious than that in Hemopo v R (nine-year starting point), but somewhat more serious than Stratton‑Pineaha v R (seven-year starting point). The offending here is also more serious than in Tereora v R (six and a half year starting point). Mr Poi and Mr Wilson also each had a significantly greater level of involvement than the appellant in Sylva v R, where a starting point of seven and a half years’ imprisonment was upheld on appeal.[18] In Currie v R a starting point of eight years was uplifted by two years to reflect “the number of charges and the aggravating features”.[19] The violence here is substantially less than in that case, but on the other hand there was no home invasion element in Currie (Mr Currie was known to the victim and had been invited into his home), no disguises and only one victim.
[17]Stratton-Pineaha v R [2020] NZCA 50 at [14] (seven years); Waddington v R [2019] NZCA 440 (nine years); Sylva v R [2017] NZCA 567 (seven years and six months); Hemopo v R [2016] NZCA 242 (nine years); Tereora v R, above n 13 (six and a half years); Walker v R [2010] NZCA 534 (ten years); Kingi v R, above n 11 (eight years) and Currie v R, above n 12 (eight years).
[18]Sylva v R, above n 17.
[19]Currie v R, above n 12, at [45].
The offending in this case involved home invasion with weapons brandished, a degree of planning and premeditation, some actual violence and significant threatened violence, some detention, multiple offenders, and the use of disguises. Taking these matters into account, the eight-year starting point adopted by the Judge was in accordance with the Mako guidelines and consistent with decisions of this Court since Mako. The starting point was well within the appropriate range and cannot be impeached on appeal.
Was it appropriate to apply an uplift for previous convictions?
Mr Wilson’s sentence was uplifted by four months to take account of his previous convictions. Mr Poi’s sentence was uplifted by three months for the same reason.
Both appellants have a significant number of previous convictions. Many of these, however, relate to such things as driving offences, or failure to answer police bail.
Offences of a similar type to the offending before the court will generally carry significantly greater weight than prior offending that is materially different in character.[20] Aggravated robbery falls within a category of offences defined in the Sentencing Act 2002 (the Act) as serious violent offences.[21] Mr Wilson has only two previous convictions for serious violent offences, namely a 2003 conviction for assault with intent to injure and an aggravated robbery committed in 1998. In our view this offending is too historic to warrant an uplift. For Mr Poi, his only prior conviction for a serious violent offence is his conviction for wounding with intent to injure in 1996. Again, this is too historic to justify an uplift. We are therefore satisfied that the Judge erred in applying an uplift to reflect the appellants’ previous criminal history, as Mr Davie conceded.
Were appropriate discounts given for personal circumstances?
[20]R v Ward [1976] 1 NZLR 588 (CA) at 590 and Kushell v Police [2012] NZHC 2380 at [12].
[21]“Serious violent offence” is defined in s 86A of the Sentencing Act and includes such offences as robbery, aggravated robbery, aggravated burglary, kidnapping, wounding with intent to injure, wounding or injuring with intent to cause grievous bodily harm, manslaughter, murder and serious sexual offending.
Both appellants submit that the discounts they were given for personal mitigating factors were insufficient. They seek leave to file new evidence on appeal regarding their backgrounds and personal circumstances.
Personal circumstances - relevant legal principles
A sentencing judge must consider a wide range of matters in determining an appropriate sentence. These include, amongst other things, the seriousness of the offending and the personal circumstances of the offender, including their personal, family, whānau, community, and cultural background.[22] An offender may, at sentencing, request the court hear any person called by the offender to speak on their background and the way in which that background may have related to the commission of the offence.[23] The court must hear a person called by the offender to speak on such matters, unless some special reason makes this unnecessary or inappropriate.[24]
[22]Sentencing Act, s 8(i).
[23]Section 27.
[24]Section 27(2).
Personal or cultural deprivation is not one of the specific mitigating factors set out in s 9 of the Act. The court is, however, entitled to consider, when setting a sentence, “any other aggravating or mitigating factor [it] thinks fits.”[25] This must be done with reference to the various purposes and principles of sentencing set out in the Act.[26]
[25]Section 9(4)(a).
[26]Sections 7 and 8.
One of the key ways in which a person’s background may be relevant to sentencing is that it may reduce their moral culpability for the offending. Recently, in Zhang v R, this Court observed that:[27]
[159] First, ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.
(Footnote omitted.)
[27]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. See also Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [40]–[50].
Similarly, in the leading High Court of Australia decision of Bugmy v R, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed that the fact that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[28]
[28]Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40]. See also R v Millwood [2012] NSWCCA 2 at [69]: “I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”
If an offender has diminished culpability as a result of their personal circumstances, this may in turn impact on the application of a number of the purposes and principles of sentencing including holding the offender accountable,[29] denunciation,[30] general and specific deterrence,[31] community protection,[32] and the need for rehabilitation.[33] For example, an increased focus on rehabilitation and a decreased emphasis on denunciation and deterrence may be called for in some cases. On the other hand, if it appears that an offender finds it difficult or impossible to avoid offending, this may increase the importance of community protection.[34]
Should the new evidence regarding Mr Wilson and Mr Poi’s personal circumstances be admitted?
[29]Sentencing Act, ss 7(1)(a) and (b).
[30]Section 7(1)(e).
[31]Section 7(1)(f).
[32]Section 7(1)(g).
[33]Section 7(1)(h).
[34]See for example Bugmy v R, above n 28, at [44]: “An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”
Mr Wilson and Mr Poi both seek leave to file reports under s 27 of the Act regarding their cultural and personal circumstances. In addition, Mr Poi seeks leave to file a psychological report. All the reports were prepared post-sentencing.
It was common ground that paragraphs [18]–[19] of the psychological report and the section of Mr Poi’s s 27 report headed “the incident” on pages 8 and 9 are inadmissible. The issue is whether the balance of the three reports should be admitted. Mr Davie noted that the Judge had some familiarity with the background of the appellants and did have at least some information available to him at sentencing regarding their personal circumstances, but otherwise took a neutral position on the admission of the new material.
This Court has previously observed that in general s 27 reports should not be submitted for the first time on appeal.[35] Obviously, it would have been preferable if the relevant reports had been provided to the Judge prior to sentencing. However, given that the reports contain information that is highly relevant to the appeals, we are satisfied that it is in the interests of justice to admit them. Further, the Crown will not be prejudiced by such a course. We grant the applications accordingly.
[35]Carroll v R [2019] NZCA 172 at [8].
Given that we have comprehensive new evidence before us regarding the appellants’ personal circumstances, we will consider the appropriate discounts for personal factors afresh, in light of all of the information now available. To the extent that we reach a different conclusion from the Judge, this largely reflects the extensive further information now available, which was not before his Honour at the time of sentencing.
What is the appropriate discount for Mr Wilson’s personal circumstances?
Mr Wilson is of Tūhoe descent. He was aged 42 at the time of the offending His pre-sentence report records that he continued to deny the offending and accordingly did not express any remorse.
The Judge acknowledged that Mr Wilson had taken some rehabilitative steps while in prison on remand. His Honour described both Mr Williams and Mr Poi as being “not without skills” and said further that:[36]
You both are approaching middle age, have seen a bit of life, have had things in your upbringing thrown at you that were not kind to you, have faced some tragedy and I have a clear view that away from the nastiness of this offending you have been convicted of, both can be able men and supportive to your whānau and have pro-social people within your whānau who can be of support to you.
[36]District Court judgment, above n 1, at [19].
The s 27 report filed on behalf of Mr Wilson describes his personal, whānau, community, and cultural background in considerable detail. The following are some of the factors identified by the report writer as particularly relevant:
(a)Cultural disconnectedness — disconnection from Te Ao Māori and not being meaningfully engaged in cultural activities that reinforce mana (inner strength) as a tane Māori (Māori man).
(b)Whānau dysfunction and family violence — grew up in an environment of incessant drinking and partying where the needs of the children were not met and violence was common. (The environment was likened to that in the well-known film “Once were Warriors”).
(c)Care and protection — intermittent foster care from the age of 12 onwards, being passed around between various foster homes.
(d)Limited education — expelled from secondary school at 14-years-old with no formal qualifications and a diminished earning capacity.
(e)Early entry to criminal justice system — first sentence of imprisonment at 19-years-old. This marked the onset of his journey through the criminal justice system, which has continued throughout his life.
(f)Alcohol and drug addictions — alcohol and cannabis addiction from a young age, and more recently methamphetamine use. Mr Wilson was first exposed to cannabis at the age of eight and became heavily dependent on it for many years. Alcohol was another substance he took up from a young age, as a result of being dragged around to parties where everyone would be drunk.
(g)Gang affiliation — affiliated to a gang from a young age, to find a sense of belonging and acceptance.
Due to whānau dysfunction, and the years he spent in foster care, Mr Wilson suffered a number of extremely traumatic experiences in his formative years. It is not necessary to go into detail. We accept the report writer’s view that they have caused profound and lifelong damage that has contributed significantly to Mr Wilson’s trajectory into the criminal justice system. On a more positive note, Mr Wilson has made the difficult and courageous decision to address his past trauma so that he can start to heal from it and embrace a more positive lifestyle moving forwards. Ms Gray outlined the positive and concrete steps Mr Wilson is taking in that direction.
In accordance with the principles we have outlined at [23] to [27] above, it is our view that Mr Wilson’s culpability for the offending is diminished by his background circumstances. That is not to say, of course, that he has no culpability or that he bears no responsibility for the choices he has made. Mr Wilson’s culpability for this offending is significant (as reflected in the lengthy prison sentence imposed). But we accept that Mr Wilson’s background and the profound trauma he has suffered have severely limited his choices, distorted his values, impaired his decision-making and resulted in him coming under the negative influence of the Mongrel Mob gang.
As the Crown noted, Mr Wilson is no longer a young man, and has a significant offending history. Nevertheless, in our view, his background remains relevant for sentencing purposes. In this context, we agree with the observations of the High Court of Australia in Bugmy that a background of deprivation and disadvantage “may leave its mark on a person throughout life” and that:[37]
Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[37]Bugmy v R, above n 28, at [43]. See also Ingrey v R [2016] NSWCCA 31.
We have considered whether Mr Wilson’s history of offending requires that emphasis be given to the purpose of community protection (rather than, say, rehabilitation) in the sentencing exercise. We are satisfied, however, that it does not. As we have noted above, many of Mr Wilson’s convictions are for low-level offending. He has two convictions for serious violent offences, but they are now very historic, dating back to 1998 and 2003. The current offending therefore seems to be somewhat of an aberration.
In our view a discount of 20 per cent would appropriately recognise Mr Wilson’s background of severe deprivation and disadvantage as well as his rehabilitative prospects and the concrete steps that he is taking to attempt to address his past trauma and the impact that has had on his life, with the aim of building a more constructive life moving forward.
What is the appropriate discount for Mr Poi’s personal circumstances?
Mr Poi is 42 years of age. He was aged 39 at the time of offending. His iwi is Ngāti Hauā, based in the eastern Waikato region. Mr Poi’s pre-sentence report notes that he continued to maintain his innocence and accordingly expressed no remorse. Mr Poi denied having an issue with alcohol, but local police advised that “his alcohol use has always been an issue when he has come to their attention”. The report writer suggests Mr Poi would benefit from involvement in an alcohol and drug programme, and that:
… having been on remand for around eight months without alcohol; having had time to reflect and recognise that being in the community is a privilege, he is more cognisant of what he needs to do to remain in the community and stated he is prepared to do this.
While on remand, Mr Poi was assessed as displaying a lack of impulse control and negative attitudes towards authority, although the local police confirmed Mr Poi’s statement that his relationship with them had improved significantly in recent times. Mr Poi is recorded as being an associate (but not a member) of the Mongrel Mob gang, but he reported that he had been working to disassociate himself from anti-social peers while building up a more pro-social network. Apart from the current offending he feels he has “done good avoiding trouble”.
Mr Poi has a number of supportive whānau members. He has qualifications in the forestry and stock feed industries, a strong work ethic, and a stable work history. The Judge acknowledged that Mr Poi had taken rehabilitative steps while in prison and that Mr Poi had had a difficult upbringing and had faced some tragedy.
The psychological report prepared by Ms Bramhall describes Mr Poi’s childhood as being characterised by disruption to his primary caregivers. He was raised by a member of his extended whānau (who was an extremely strict disciplinarian) until the age of 10 and was then returned to his parents. His father had issues with alcohol and when Mr Poi was 15 his father lost control of the vehicle he was driving and suffered fatal injuries. Mr Poi, who was a passenger in the vehicle, also suffered a serious head injury in the accident. He was significantly affected by the trauma of the accident and his father’s death, which has remained with him to this day.
Mr Poi experienced difficulties learning and keeping up academically with his peers at school which resulted in him being ridiculed and bullied.
Not long after his father’s death, Mr Poi contracted tuberculosis and was hospitalised for a lengthy period. Then, when he was 16, his mother entered into a new relationship and moved away from the family home, leaving Mr Poi and his two siblings to live independently. Mr Poi’s behaviour then deteriorated. He sought support from peers who had also been expelled from school and began engaging in anti-social behaviour, offending and consuming alcohol. Ms Bramhall’s view is that “[t]his behaviour appeared to be a strategy to avoid the feelings of loss associated with the death of his father and abandonment by his mother”.
Mr Poi became involved in the criminal justice system at a young age, apparently first entering a youth justice facility at the age of 16. He now has a significant history of offending. His only previous serious violence offence was in 1996, however, when he was aged 18. Further, his overall offending has declined significantly in recent years (he did not offend at all for four years prior to the current offending). Mr Poi’s history of family violence offending, however, is a matter of concern.
Ms Bramhall’s report reveals that Mr Poi has significantly impaired cognitive functioning, possibly (at least in part) as a result of various head injuries he has suffered. Ms Bramhall administered a range of cognitive tests and Mr Poi performed very poorly in each of them. His IQ score is within the borderline range of intellectual functioning. His overall thinking and reasoning falls below 96 per cent of individuals of his age. Ms Bramhall reports that Mr Poi likely experiences significant difficulties interacting and engaging with his immediate environment, as well as difficulties with executive functioning, higher-order thinking and problem solving. His cognitive functioning difficulties may also impact upon his ability to self-regulate and/or manage emotions. In Ms Bramhall’s view, Mr Poi’s poor level of cognitive functioning, possible traumatic brain injury and unresolved childhood trauma have likely all played a role in the offending before the Court.
Mr Poi’s s 27 report covers much the same ground as Ms Bramhall’s psychological report, but notes in addition that systemic deprivation and isolation from Te Ao Māori may have contributed to Mr Poi’s offending.
The Sentencing Act recognises diminished intellectual capacity or understanding as a specific mitigating factor.[38] Diminished intellectual capacity may reduce an offender’s moral culpability for offending. In addition, as we have explained previously, a background of trauma, deprivation and disadvantage may also reduce moral culpability. In our view, the combined effect of these two factors in Mr Poi’s case is to significantly diminish his culpability, warranting a significant sentencing discount.
[38]Sentencing Act, s 9(2)(e).
As we have noted, Mr Poi’s criminal offending has significantly reduced in recent years. Further, his sole previous conviction for a serious violence offence was 24 years ago. This, together with his willingness to engage in rehabilitative efforts while in prison, all weighs in Mr Poi’s favour.
Overall, it is our view that a discount of 25 per cent would appropriately reflect Mr Poi’s reduced moral culpability and his rehabilitative prospects. A further discount of six weeks is appropriate to reflect the three months that Mr Poi spent on EM bail prior to trial.
Should minimum periods of imprisonment have been imposed?
An offender sentenced to a term of imprisonment of more than two years will normally be eligible for parole after they have served one-third of their sentence. The court may impose a MPI if satisfied that the offending is sufficiently serious that serving the normal minimum period of imprisonment will be insufficient to meet one or more of four specified purposes — denunciation, accountability, deterrence and protection of the community.[39]
[39]Section 86.
In this case the Judge dealt with the issue briefly, as follows:[40]
I have carefully considered this aspect and I consider that on usual Parole, given the seriousness of what has occurred the holding you accountable, particularly the protection of the community and denouncing what had occurred, in your circumstances for each of you, this is a proper case upon which I ought to impose a minimum period of imprisonment and I intend to do that at 50 per cent.
[40]District Court judgment, above n 1, at [42]. We note that trial counsel for Mr Wilson did not oppose the imposition of a MPI at the sentencing hearing.
Much of the personal background information we have outlined in the preceding section is also relevant to the issue of whether an MPI should be imposed, as it impacts on the weight to be given to denunciation, accountability, deterrence and community protection in the sentencing process, as opposed to other purposes and principles of sentencing, such as rehabilitation.
In light of the totality of information now available, we have concluded that an MPI is not warranted. Both offenders are facing a lengthy term of imprisonment, reflecting the seriousness of their offending. The length of their sentences, and the usual non-parole period, are sufficient to meet the purposes of denunciation, accountability and deterrence. As for community protection, given the appellants’ very limited history of serious violent offending, it is our view that it is not necessary to extend the normal non-parole period in order to protect the community. That issue is best left in the hands of the parole board, which is required to take into account the safety of the community as their paramount consideration.[41]
Result
[41]Parole Act 2002, s 7(1).
The applications for an extension of time to appeal are granted.
The applications to adduce the s 27 reports are granted.
The appeals against sentence are allowed.
Mr 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.
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.
Solicitors:
Crown Law Office, Wellington for Respondent
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