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.…

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

Case: [2016] NZHC 2567
Decision Date: 27 October 2016

CaseChat Overview and Summary

Thomas Pokaia appealed his sentence for aggravated robbery, arguing that it was excessively harsh relative to the sentence of his co-offender, who had a greater role in the offence. Pokaia was sentenced to two years and nine months imprisonment, whereas his co-offender received a sentence of two years and four months. Pokaia contended that insufficient notice was taken of the lesser sentence imposed on his co-offender whose culpability was greater.

The court had to determine if Pokaia's sentence was manifestly excessive or wrong in principle, warranting appellate intervention. The court considered whether the disparity between the sentences was unjustifiable or gross, potentially indicating an error in the administration of justice. The court examined the circumstances of both offenders, the mitigating and aggravating factors, and the principles governing sentencing disparity between co-offenders.

The court held that the disparity in sentences did not arise from an error. The court found that there were sufficient differences between the circumstances of Pokaia and his co-offender such that the disparity did not indicate an error in the administration of justice. The court noted that a lenient or merciful sentence for one offender does not create an expectation of similar leniency for others. The court concluded that Pokaia's sentence was not manifestly excessive, and dismissed the appeal.

No further orders were made.

Orders