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…

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: [2015] NZHC 1718
Decision Date: 24 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Thomas Pokaia appealed against his sentence imposed by the District Court at Palmerston North. Pokaia was sentenced to 20 months imprisonment following a guilty plea to injuring with intent to injure, and breaches of community detention and supervision. The appeal focused on whether the sentence was manifestly excessive, particularly in relation to the starting point for the injuring with intent to injure charge and the discount for personal circumstances.

The legal issues centred on whether the sentencing judge appropriately identified the aggravating factors and applied them in line with the guidelines set out in R v Taueki. The appellant argued that the starting point for the injuring charge was too high, and that insufficient allowance was made for his personal circumstances, which warranted a greater discount. The Crown countered that the sentence was within the appropriate range based on similar cases and the appellant’s history of offending.

The Court found that the offending did not involve extreme violence as the judge had suggested, and that the aggravating factor of facilitating a crime should not have been considered because it was not an element of the charge to which Pokaia pleaded guilty. The Court placed the offending in Band two of Nuku, leading to a starting point of up to three years imprisonment. Considering recent cases, the Court determined that a starting point of two years was appropriate. Additionally, the Court found that the appellant’s personal circumstances, including recent positive changes in his behaviour and efforts towards rehabilitation, warranted a greater discount than the one month allowed for youth. The Court substituted a sentence of 14 months for the injuring with intent to injure charge, while maintaining the cumulative sentence for the other charges.

The appeal was allowed, and the sentence was adjusted accordingly.

Orders