A violent assault, with a tragic sequel. Mr Poi and a friend administered a prolonged beating to the victim. Mr Poi hit him repeatedly with a bottle. Mr Poi was convicted by a jury of wounding with intent to injure. He was sentenced to three years’ imprisonment.[1] Four months after his sentence began Mr Poi was himself the victim of a serious assault — beaten by another prison inmate. Mr Poi suffered traumatic brain injuries. He remains in a coma. He will likely require lifelong care. He has been given early release by the Parole Board.[2] Despite his release on parole into a nursing facility, Mr Poi’s family contend the original sentence was too severe.[3]
[1]R v Poi DC Napier CRI-2013-041-1506, 19 November 2014.
[2]Parole Act 2002, s 25. Although probably academic, he is in theory recallable — for example in the event of further offending — up to his sentence expiry date of 18 November 2017.
[3]Mr Poi filed his notice of appeal and instructed counsel several months prior to the attack, but is now in no state to be able to give counsel further instructions.
The facts here were that an argument erupted after a party at Mr Poi’s address, when the complainant, Mr Poi and Mr Poi’s flatmate went to the complainant’s address. It concerned cigarettes supposedly stolen by a friend of the victim. Mr Poi’s flatmate (who was his co-defendant) began the fight. It was not provoked by the victim. Mr Poi joined in. The victim was knocked to the ground. The defendants punched and kicked him repeatedly. They detained him, despite his attempts to escape, to ensure he did not lay a complaint. The punching, kicking and stomping continued. Mr Poi hit the back of the victim’s head repeatedly with a bottle. The beating continued after that for another half hour. Once the defendants were satisfied the victim would not call the police, he was made to shower (to wash off the blood). He was then released. He had seven lacerations to his scalp, a fractured rib, a broken tooth and other more minor injuries.
Mr Phelps advanced three arguments before us.
Starting point too high?
Judge Downs adopted a starting point of three and a half years’ imprisonment. Mr Phelps submits this was too high. Mr Phelps accepts that the violence meted out by Mr Poi to the victim involved the four aggravating factors identified by the Judge: use of a weapon, attack to the head, multiple attackers and serious injury. Mr Phelps described 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 R [2015] NZCA 300
Case
[2015] NZCA 300
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellant Jason James Poi brought an appeal against his sentence, and an application for leave to adduce fresh evidence, following his conviction for wounding with intent to injure. Poi had been sentenced to three years' imprisonment, but four months into his sentence, he suffered a serious assault in prison, resulting in traumatic brain injuries and leaving him in a coma with a likely need for lifelong care. Poi's family argued that the original sentence was too severe, and the Parole Board had granted him early release. The appellant's counsel advanced three arguments on appeal: first, that the starting point of the sentence was too high; second, that insufficient credit was given for Poi's remorse; and third, that the new evidence of the prison assault and its consequences meant the sentence was manifestly excessive.
The Court of Appeal found that the sentencing Judge was correct to treat the case as a lower-level band three case, considering the four aggravating factors present in the offence. While some credit for remorse might have been appropriate, the Judge had given a generous 15 per cent discount for good character, and the sum of the individual parts of the sentence was correct. The Court also held that it would not be right to intervene in this case to reduce the term of imprisonment, as the role of the Court on a sentencing appeal is to correct error, and absent error, a sentence appeal must be dismissed. The Court noted that the Parole Board had already responded to the new evidence by granting Poi early release, and there was no legitimate further function for the Court to perform on appeal.
The Court granted the application for leave to adduce fresh evidence but dismissed the appeal against sentence.