T Epati for Ms Pokai A M Simperingham and M Prinsloo for Ms Black M D Downs for Respondent
Judgment:
7 August 2014 at 11.30 am
JUDGMENT OF THE COURT
AThe appeals against sentence are allowed in part.
BThe appeals against the sentences imposed in respect of the manslaughter charges are dismissed. The sentences of six years and four months’ imprisonment on those charges are confirmed.
CThe appeals against the sentences imposed in respect of the charges of attempting to pervert the course of justice are allowed. The cumulative sentences of two years, four months’ imprisonment on the charges of attempting to pervert the course of justice are quashed and are replaced with cumulative sentences of one year eight months’ imprisonment.
DFor clarity each of the appellants’ sentences are now a total of eight years’ imprisonment.
Background facts [3] The structure of the sentence [12] Grounds of appeal [17] Starting point [21]
The application of Taueki principles in the present context [21] Premeditation [28] Self-defence [37] Callousness [44] The appropriate starting point [48]
Totality principles [56] Discount for guilty pleas [68] Discount for remorse [73] Result [76]
Ms Black and Ms Pokai pleaded guilty in the High Court at Gisborne to charges of manslaughter, theft, conversion of a motor vehicle, attempting to use a document to obtain money and attempting to pervert the course of justice. On 16 December 2013 Gilbert J sentenced them both to six years, four months’ imprisonment on the manslaughter charge, and imposed a cumulative sentence of two years, four months’ imprisonment on the charge of attempting to pervert the course of justice.[1] The Judge imposed concurrent sentences on the remaining charges.[2]
Ms Black and Ms Pokai now appeal to this Court against the sentences imposed on both the manslaughter charges and the charges of attempting to pervert the course of justice. They say that the end sentences the Judge imposed were manifestly excessive.
Background facts
Both appellants pleaded guilty on the basis of an agreed summary of facts. This recorded that on the evening of 28 December 2012 the appellants, who lived together in a de facto relationship, attended a concert with friends. Whilst at the concert they had an argument. This resulted in Ms Pokai leaving the concert early. Outside the concert she accepted a ride from the victim, Mr Singh, who was driving past and offered to drive her home. During the car journey, Ms Pokai exchanged cellphone numbers with Mr Singh. Ms Pokai had never met Mr Singh before she accepted the lift in his vehicle.
During the following day,…
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
Pokai v R [2014] NZCA 356
Case
[2014] NZCA 356
Decision Date
CaseChat Overview and Summary
The appellants, Ms Pokai and Ms Black, appealed against their sentences on two grounds. They submitted that the starting point the Judge selected was too high and that the Judge had failed to properly apply totality principles when he imposed cumulative sentences on the charges of attempting to pervert the course of justice. The Court of Appeal disagreed with the appellants’ submission that the starting point was too high. It was satisfied that the starting point of eight years’ imprisonment on the manslaughter charge was appropriate. The Court of Appeal found that the Judge had failed to properly apply totality principles when he imposed cumulative sentences in relation to the charges of attempting to pervert the course of justice. It considered that an appropriate starting point was a cumulative sentence of two years’ imprisonment on those charges. The appeals against the sentences imposed in respect of the manslaughter charges were dismissed. The sentences of six years, four months’ imprisonment on those charges were confirmed. The appeals against the sentences imposed in respect of the charges of attempting to pervert the course of justice were allowed. The cumulative sentences of two years, four months’ imprisonment imposed on those charges were quashed and replaced with cumulative sentences of one year and eight months’ imprisonment.