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Polaapau v R

Polaapau v R

Case [2020] NZCA 227 11 June 2020

Appeal

Sentencing

Mens Rea & Intention

Unlawful Interference with Transport

Aggravated Robbery

Aggravated Burglary

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA602/2019
[2020] NZCA 227

BETWEEN	NUTIMEKI MAVEU POLAAPAU Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2020
Court:	Kós P, Venning and Mallon JJ
Counsel:	M F Tu’ilotolava for Appellant M R L Davie for Respondent
Judgment:	11 June 2020 at 11 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is allowed.

CThe sentence of six and a half years’ imprisonment is quashed.
DThe appellant is sentenced to five and a half years’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Nutimeki Maveu Polaapau is 19 years old. On 10 October 2019, Judge T V Clark sentenced him to imprisonment for six and a half years for a range of violence and property offences that he had committed when he was 15, 16 and 17 years old.[1] He appeals the sentence on the grounds it is manifestly excessive.
[1]R v Polaapau [2019] NZDC 20333.
The appeal was filed four days out of time. The Crown accepts there is no prejudice. The application for an extension of time to appeal is granted.

The charges before the District Court

The sentence imposed by Judge Clark in the District Court at Manukau was imposed in relation to charges laid in the District Court after Mr Polaapau turned 17 and also in relation to three charges transferred to that Court from the Youth Court. Judge Clark imposed the sentence of six and half years’ imprisonment on the following charges:[2]
(a)aggravated wounding on 17 November 2016 (Youth Court);
(b)aggravated burglary on 25 February 2017 (Youth Court);
(c)aggravated robbery on 27 February 2017 (Youth Court);
(d)aggravated burglary on 15 February 2018; and
(e)unlawful interference with transport on 27 April 2018.
[2]At [131].
The Judge imposed concurrent terms of two years’ imprisonment on the following charges:[3]
(a)two charges of unlawfully using a motor vehicle on 15 February 2018;
(b)unlawfully using a motor vehicle on 26 April 2018; and
(c)aggravated injury on 27 April 2018.
[3]At [132].
On a related charge of failing to stop on 27 April 2018, the Judge imposed a concurrent sentence of four months’ imprisonment and disqualified Mr Polaapau for six months.[4]
[4]At [132].
The Judge convicted and discharged Mr Polaapau on all the other charges before the Court.[5]

Procedural background

[5]At [141].

Mr Polaapau has been before the Youth Court on numerous occasions. For present purposes, the relevant background to the offending started in November 2016 when Mr Polaapau was residing at a Youth Justice facility. He and two others attacked the night shift attendants at the units and escaped.[6] Mr Polaapau was subsequently apprehended and returned to a different Youth Justice facility. He escaped again from that facility on 24 February 2017.
[6]The aggravated wounding charge at [3(a)].
While at large, Mr Polaapau and another person stole a motor vehicle and then, on 25 February 2017, Mr Polaapau and another co-offender committed an…

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.

Continue reading Polaapau v R

Details

AGLC: Polaapau v R [2020] NZCA 227
Case: [2020] NZCA 227
Decision Date: 11 June 2020 at 11 am

CaseChat Overview and Summary

Nutimeki Maveu Polaapau appeals against his sentence of six and a half years’ imprisonment for various offences committed between the ages of 15 and 17. He argues the sentence was manifestly excessive. The Court of Appeal accepts the appeal and reduces the sentence to five and a half years.

The central legal issue is whether the six and a half year sentence was manifestly excessive. Polaapau argues the sentence was too harsh considering his age, personal circumstances, and engagement with a previous Youth Court order. The Crown contends the sentence was appropriate given the seriousness of the offending.

The Court finds Polaapau’s personal history and circumstances were adequately considered but that the four year uplift for the Youth Court offending was excessive. The Court determines an overall starting point of 11 years was more appropriate given the totality of the offending and the time that had passed. Applying a 50% discount for Polaapau’s youth and guilty plea leads to a final sentence of five and a half years’ imprisonment.

The appeal is allowed. The six and a half year sentence is quashed and Polaapau is re-sentenced to five and a half years’ imprisonment.

Orders