Pokaia v Police

[2015] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-7 [2015] NZHC 1718

BETWEEN

THOMAS POKAIA

Appellant

AND

NEW ZEALAND POLICE First Respondent

DEPARTMENT OF CORRECTIONS Second Respondent

Hearing:	21 July 2015
Counsel:	P S Coles for Appellant M J Blaschke for Respondents
Judgment:	24 July 2015

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.30 pm on the 24th day of July 2015

Solicitors:           P S Coles, Barrister & Solicitor, Palmerston North, for Appellant

Crown Solicitor, Palmerston North, for Respondents

POKAIA v NEW ZEALAND POLICE [2015] NZHC 1718 [24 July 2015]

[1]      The appellant  was  sentenced  by Judge  Bouchier in  the District  Court  at Palmerston North on 9 June 2015 following a plea of guilty to one charge of injuring with intent to injure, two breaches of community detention and one breach of supervision.1    He was sentenced to a total of 20 months imprisonment, made up of

17 months on the injuring charge and three months on the breaches of sentence.

[2]      The appellant’s submission that the end sentence was manifestly excessive is

based on two grounds;

(a)       that the starting point on the injuring with intent to injure charge was too high;  and

(b)that insufficient allowance was made for the personal circumstances of the appellant, which justify a discount.

[3]      At  12.50 am  on  14  February 2015,  the  appellant  and  a  15  year  old  co- offender were at a service station in Palmerston North.  They had consumed alcohol and were intoxicated.  The victim was also at the service station.  They approached him and demanded money from him.  When he refused, they chased him around the forecourt and he yelled out for the attendant to call the police.  The offenders pushed the victim against the wall and punched him in the head and body area several times. The blows caused him to fall to the ground.

[4]      He covered his head with his arms as the offenders searched his pockets and attempted to rip his bag from him.   They stomped on his head and body several times. At this point, a witness approached and lay over the victim to protect him, but one of the offenders (it is unclear whom) dragged the witness off and continued to punch the victim.  The defendants continued to punch the victim with closed fists to the head when the police arrived.

[5]      The victim, a 29 year old male, sustained swelling and bruising to the right side of his head and face (including around his eye), and cuts to his lips and nose.  In

1      Police v Pokaia [2015] NZDC 10751.

fixing a starting point, the Judge identified six aggravating factors, by reference to R

v Taueki.2  These were as follows:

(a)      Extreme violence involved in the offending.   There was significant punching and stomping which continued while the victim was on the ground and despite a bystander’s attempt to shield him.  An attack to the head.

(b)      Some modest premeditation.

(c)       Fortunately not too serious an injury. (d)         The attack was to facilitate a crime. (e)       There were multiple attackers.

[6]      Mr  Coles  takes  issue  with  the  description  of  the  offending  as  involving extreme violence.    He also  takes  issue with  the  Judge’s  taking into  account  as aggravating factors premeditation and that the attack was to facilitate a crime.

[7]      In R v Nuku3 the Court of Appeal addressed the application of the R v Taueki guidelines for the more serious offending under s 189(1) of the Crimes Act 1961, to the less serious offending under s 189(2).  It said:

[37]     We  consider  therefore  that  we  should  replace  Harris  with  the following   guidance,   applicable   to   offending   under   ss 189(2), 188(2) and 191(2)  where  the  offending  involves  intent  to  injure.    We  see  this judgment as providing guidance on how Taueki can be adapted to apply to the lesser charges, rather than being a guideline judgment in its own right.

[38]     The following bands apply:

(a)       Band  one:  where  there  are  few  aggravating  features,  the level of violence is relatively low and the sentencing judge considers  the  offender’s  culpability  to  be  at  a  level  that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

2      R v Taueki [2005] 3 NZLR 372 (CA).

3      R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.

(b)       Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c)       Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious.  The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[8]      The Judge assessed the injury as “not too serious”. I do not  consider it appropriate, in the circumstances of this case, to treat extreme violence as an aggravating factor.

[9]      As to the Judge’s conclusion that there was “some modest premeditation”, Mr Coles submits that because the offending arose from a chance encounter with the victim at the service station and given the appellant’s extreme state of intoxication the offending could not be described as premeditated at all.  Any premeditation was limited to that involved in approaching the victim and demanding money.  I consider that the Judge’s description of that as modest is appropriate.

[10]     The principal challenge is to factor (e), that the attack was to facilitate a crime.  The appellant had originally been charged with the more serious offence of assault with intent to rob.   When that charge was dropped in favour of the lesser charge, it appears that the summary of facts may not have been amended to reflect that change.  Because the facilitation of a crime was not an element of the charge to which the plea of guilty was entered, there is no admission of that element in the plea of guilty.   In those circumstances, I consider that this should not have been relied upon as an aggravating factor in sentencing.

[11]     What is required is an assessment of the gravity of the offending in this case, not a mechanical counting of aggravating factors. However the assessment is approached in this case, it leads clearly to placement in Band two of Nuku, with a starting point of up to three years imprisonment. The task is to select an appropriate starting point within that range.

[12]     Mr Blaschke for the respondent refers to a number of recent cases which he submits support the starting point of 24 months.  He refers in particular to Takerei v Police,4   Dean  v  Police,5   and  O’Docherty  v  Police.6    Having  regard  to  these decisions, I consider that a starting point of two years is within range when the aggravating factor of facilitating a crime is not given weight in the assessment.  It is the same starting point for the somewhat similar offending in Dean, which was accepted as appropriate.  It is supported by Takerei and the other cases considered in that decision.  The offending in O’Docherty attracted a starting point of two and a

half years imprisonment and was placed in Band three. That is less comparable with the present case.

[13]     The second aspect is whether some allowance should have been made for the appellant’s personal circumstances.  The Judge allowed a full discount of 25 per cent for the guilty plea at the first available opportunity once the charge was amended. She allowed a further discount for youth of one month, taking the sentence for the assault with intent to injure to 17 months.

[14]     The appellant has what is described in the pre sentence report as a moderate history  of  conviction  involving  breaches  of  release  conditions,  escaping  from custody, breach of community work, alcohol impaired driving, wilful damage and common assault.   The opinion is expressed that the current convictions are representative of an increase in the frequency and severity of his offending and an inability to comply with community based sentences.   The appellant also has a harmful pattern of alcohol and substance abuse.

[15]     Mr Coles accepts that the appellant’s history excluded a community based sentence in this case, so that imprisonment was appropriate.   He submits however that there have been signs of a more positive approach to rehabilitation, following remand in custody for the present offending, and that a greater discount should have been given for the appellant’s personal circumstances, having regard to his age and to his more meaningful rehabilitative efforts while on remand in custody for the

present offending.

4      Takerei v Police [2014] NZHC 3360.

5      Dean v Police [2014] NZHC 1542.

6      O’Docherty v Police [2014] NZHC 2312.

[16]     In a letter to the sentencing Judge the appellant’s mother describes him as having become severely addicted to synthetic highs while still at high school.  This caused him to go from being an A grade student with no convictions in 2013 to receiving a term of imprisonment.  She acknowledges that on release from prison he went straight back to using synthetic highs, but she says that he ended his addiction and describes the psychological effects of his withdrawal from these substances as “astronomical”.  She expresses the belief that since giving up synthetic highs he has been trying hard to get his life on track.

[17]     Those views are supported by a report from an alcohol and drug counsellor at Te Wakahuia Manawatu Trust, Hauora.  The writer had interviewed the appellant on several occasions two years ago when his continued use of what were then legal synthetic drugs, and other drugs, made any motivational changes impossible.   He describes two further interviews in April and June 2015.  In the first, the appellant did not engage with the interviewer or with the process and did not acknowledge any responsibility in respect of the offending.   The writer expressed the view that the appellant was then still suffering from a pre-determined drug induced influence.  He describes the June interview as being markedly different.   The appellant provided normal responses and “his recall of why he’s incarcerated was deep shame and remorse towards his victim and also his entire family”.  That change led to a recommendation that the appellant be given a non-custodial sentence to undertake a programme to address his alcohol and drug addiction and offending.   The writer described that recommendation as “a long term option with the future safety of the public at large, and also Mr Pokaia’s long-term safety”.

[18]     There is further evidence of a changed response from the appellant in a report from the tutor at the design school in Corrections.  He says the graphic design course has changed the appellant’s mindset and given him an opportunity to use his talent in graphic design to its full potential.  He has impressed the tutor who describes him as finding a sense of direction and applying himself and obtaining a good result.

[19]     I consider that those positive indications justify a response in the sentencing process, to reinforce and encourage these positive changes, and that the discount of one month for youth is not an adequate recognition of these factors.  I consider that

adjustment of a further three months is justified to reflect these favourable personal circumstances. I agree with the assessment that a community based sentence is not appropriate.

[20]     For these reasons the appeal is allowed.  The sentence of 17 months on the injuring with intent to injure charge is quashed and a sentence of 14 months is substituted. The cumulative sentence on the remaining charges is not affected.

“A D MacKenzie J”