Pokaia v Police

[2016] NZHC 2567

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH  REGISTRY

CRI-2016-454-35 [2016] NZHC 2567

BETWEEN

THOMAS POKAIA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 October 2016
Appearances:	F D Steedman for Appellant K A Courteney for Respondent
Judgment:	27 October 2016

JUDGMENT OF CLARK J

[1]      Mr Pokaia was sentenced on 12 August 20161  on one charge of aggravated robbery.

[2]      Mr Pokaia appeals his sentence of two years and nine months imprisonment as being manifestly excessive in that insufficient notice was taken of the lesser sentence imposed on his co-offender whose culpability in the offending was greater.

Facts

[3]      In December 2015 the victim of the offending parked his vehicle by the Manawatu River near Ashhurst to sleep for the night.  He had been living in his car with all his possessions for two months.

[4]      At around 5:00am the appellant, his co-offender, Mr Kolofale, and two other

associates arrived and parked directly behind the victim’s car.   The appellant and

Mr Kolofale approached the car.  The appellant returned to his car while Mr Kolofale

1      Police v Pokaia [2016] NZDC 15649.

POKAIA v NEW ZEALAND POLICE [2016] NZHC 2567 [27 October 2016]

attempted to wake the victim by banging on the window.   The victim woke up. Being fearful for his safety he attempted to drive off but because his car was blocked he could not escape.  He wound down his window a little to speak to Mr Kolofale who then forced the window, opened the door and dragged the victim from his car.

[5]      The appellant then rejoined Mr Kolofale and both punched the victim.  The victim fled a short distance before the appellant tackled him to the ground, took his car keys and went through his pockets.  Both the appellant and Mr Kolofale punched and  kicked  the  victim  while  he  was  on  the  ground,  until  the  appellant  pulled Mr Kolofale off the victim because he thought it had gone too far.

[6]      The appellant and Mr Kolofale drove off in the victim’s car, followed by the

associates in the car all had arrived in.

[7]      The victim lost most of his personal possessions to a value of $3,500 and suffered a fractured finger, and bruising and abrasion to the side of his head.   He suffered significant emotional after-effects.  His injured finger still does not have a full range of movement and he suffers headaches which his doctor attributes to delayed concussion.

District Court decision

[8]      Judge Edwards acknowledged the need for consistency with similar cases and that the sentence of the co-offender required to be taken into account in sentencing the  appellant.2    The  starting  point  adopted  by  Judge  Smith  when  sentencing Mr Kolofale was three years and six months imprisonment.3   Judge Edwards adopted the same starting point.

[9]      The Judge accepted that the appellant’s lesser role in the assault warranted some reduction in the starting point but not in the order of the 15 per cent proposed by counsel.  She reduced the starting point by three months.  (That amounted to a

reduction of approximately seven per cent.)

2 At [9].

3      R v Kolofale [2016] NZDC 5131.

[10]     An  uplift  of  five  months  imprisonment  was  then  applied  to  reflect Mr Pokaia’s previous convictions, and that at the time of the offending he was subject to release conditions arising from earlier violent offending.   The nominal sentence was therefore three years and eight months imprisonment.

[11]     A full 25 per cent discount was allowed for Mr Pokaia’s guilty plea, resulting

in an end sentence of two years and nine months imprisonment.

Grounds of appeal

[12]     Mr Pokaia appeals on the ground that his sentence was manifestly harsh and excessive because insufficient notice was taken of the sentence imposed on his co- offender whose role in the offending was greater.

Submissions

[13]     Counsel for the appellant, Mr Steedman, submitted that:

(a)       In general terms the Judge’s methodology was correct but the end

result was unfair “which casts some doubt on the methodology”.

(b)The appellant and the co-offender are very close in age.  Both have a significant list of previous convictions.  Mr Kolofale’s is shorter but more serious.  Both were subject to release conditions at the time of the offending.   In view of those similarities it is difficult to find a logical basis for the different sentences.

(c)      The unjustifiable disparity is itself an  error of principle justifying intervention on appeal.

(d)      A sentence of two years would have been correct.

[14]     I asked Mr Steedman if he was suggesting that I should assess the correctness of Mr Kolofale’s sentence in light of his criminal history which I would be required to review, a course about which I expressed reservations.  Mr Steedman submitted

that Mr Kolofale received a compassionate sentence.  He asked that I proceed on the basis that it was fair.

[15]     Ms  Courteney  filed  full  written  submissions.    In  summary,  the  Crown’s position is that the different sentences reflect different aggravating and mitigating circumstances personal to each offender.  The lesser culpability of the appellant was properly acknowledged by a three month reduction to the starting point.

Analysis

[16]     I must allow the appeal if I am satisfied that there is an error in the sentence and that a different sentence should be imposed.4   The sentence must be manifestly excessive or wrong in principle before the Court will interfere.5

[17]     I accept the Crown’s submission that there are sufficient differences between the  circumstances  of  the  appellant  and  his  co-offender  such  that  the  disparity between the sentences does not arise from an error, and that the appellant’s sentence is not manifestly excessive.

[18]     The  principles  applicable  to  appeals  against  sentences  on  the  basis  of disparity are settled.  In Macfarlane v R the Court of Appeal said:6

[24]     Disparity  between  the  sentences  of  co-offenders  will  lead  to  a reduction in the sentence under appeal only if the difference is so marked as to lead a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice”. The difference must be “unjustifiable” or “gross”. A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.

[19]     The circumstances that gave rise to the different sentences demonstrate that the disparity would not cause a reasonably-minded independent observer aware of all the circumstances to think that something had gone wrong in the administration of

justice.

4      Criminal Procedure Act 2011, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]–[33].

6      Macfarlane v R [2012] NZCA 317 (citations omitted), applied in Pearce v R [2014] NZCA 388, (2014) 27 CRNZ 141 at [58].

[20]     In respect of the uplifts applied to the starting points, both the appellant and Mr Kolofale were in breach of release conditions at the time of the offending.  The appellant received an uplift of five months for breach of release conditions and previous convictions.  Mr Kolofale’s sentence was not similarly uplifted.  But as the Court of Appeal observed in the passage which I have quoted, a lenient or merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.

[21]     Mr Kolofale received a discount of six months, or 12 per cent, for assistance given to the police following arrest.   He assisted the police fully and named his associate (the appellant).  This contributed significantly to the difference between the sentences.  In his written submissions Mr Steedman noted that a similar discount was not given to the appellant.  In oral submissions Mr Steedman acknowledged he had not sought such a discount in the District Court.  Nor was it available to him to do so.  While it was tentatively submitted by Mr Steedman that the appellant eventually cooperated with the police investigation and could have been entitled to some discount on that basis, it was not submitted that the Judge erred in not making a discount for assistance, or that there was an error of fact.  The appellant, in fact, had no basis for seeking a similar discount and the sentence discloses no error in that respect.

[22]     I have read the PAC report and a letter from an alcohol and drug counsellor with Te Whakahuia Manawatu Trust Hauora.  Both reports identify alcohol and drug abuse as a very real concern and a significant influence on the appellant’s conduct. He is also struggling to deal with personal loss and depressive mood swings.

[23]    Judge Edwards was alive to these issues and referred to the appellant’s participation in rehabilitative programmes.   I hope for the sake of the appellant’s rehabilitation and reintegration that such support can continue to be made available.

Result

[24]     The appellant has identified no error in the Judge’s approach.  The appeal is

dismissed.

Karen Clark J

Solicitors:

Crown Law Office, Wellington