Pologa v Police
[2024] NZHC 181
•15 February 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-623
[2024] NZHC 181
BETWEEN SIMON POLOGA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2024 Appearances:
J Wycliffe (on behalf of H B Leabourn) for Appellant J Gibson for Respondent
Judgment:
15 February 2024
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 15 February 2024 at 10.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
H B Leabourn, Auckland
Meredith Connell, Office of the Crown Solicitor, Auckland
POLOGA v NEW ZEALAND POLICE [2024] NZHC 181 [15 February 2024]
[1] Mr Pologa entered guilty pleas in the District Court to two charges of injuring his partner with intent to injure her and threatening to cause her grievous bodily harm. He also pleaded guilty to a charge of breaching his prison release conditions by associating with his partner when forbidden to do so. On 28 November 2023,
Judge J M Jelaš sentenced Mr Pologa to two years two months imprisonment.1
[2] Mr Pologa appeals against sentence. He contends a mathematical error by the Judge meant that the sentence should have been no more than 25 months imprisonment. He also contends the Judge ought to have given him a greater discount to reflect factors identified in a cultural report tendered under s 27 of the Sentencing Act 2002. He says this would have reduced the sentence to one of two years imprisonment or less, thereby enabling the Judge to impose a sentence of home detention.
[3] Mr Pologa asks the Court to make an order under s 80I of the Sentencing Act granting him leave to apply for the sentence of imprisonment to be converted to one of home detention. He would commence serving this sentence when a placement becomes available to him in a residential rehabilitation facility such as Odyssey House.
The charges
[4] The charges of injuring with intent to injure and threatening to cause his partner grievous bodily harm were laid as a result of a series of events that occurred on 24 June 2023. On that date Mr Pologa and his partner were staying with a mutual friend. They were relaxing in a bedroom at the address. Mr Pologa became angry because of noise being made by children in the house. He took his anger out on his partner. He got off the bed and kicked his partner in the back. When she retaliated by kicking him back, he punched her in the face several times with a closed fist. He then grabbed her wrists to prevent her from leaving the room. His partner managed to escape and called for assistance. Mr Pologa then left the address.
[5] Mr Pologa and his partner reconciled their differences later the same day but by this stage they had been told they had to leave the address. At this point, Mr Pologa
1 Police v Pologa [2023] NZDC 26620.
told his partner that he would kill her if she spoke to the police. He threatened to use her vehicle to run her over. The police located Mr Pologa in the company of his partner two days later. He was then arrested.
[6] The incident left the victim with a cut to her left eye and swelling to her eyebrow and forehead. Her face was covered in blood. She subsequently suffered headaches and dizziness.
[7] Mr Pologa told the writer of the pre-sentence report that he had consumed methamphetamine on the day of the offending and was coming down from the high produced by this when the offending occurred. He said he became angry when the children kept coming into the bedroom where he and his partner were resting. He became angry towards his partner because she did not tell the children to go away.
[8] At the time the offending occurred Mr Pologa was subject to a release condition that prohibited him from associating with his partner. This was imposed upon his release from prison after serving a sentence of two years two months imprisonment that he received on 18 November 2021. Prior to the events that gave rise to the present charges Mr Pologa was convicted on a charge of breaching this condition when he was found in his partner’s company on 30 April 2023. On 8 June 2023 he was ordered to come up for sentence on that charge if called upon to do so within six months. The events that occurred between 24 and 26 June 2023 meant that Mr Pologa breached the release condition on a second occasion by being with his partner during that period.
The sentence
[9] Mr Pologa entered guilty pleas after receiving a sentence indication from the Judge on 22 August 2023. The Judge indicated a starting point of two years eight months imprisonment on the charges of injuring with intent to injure and threatening to cause grievous bodily harm. She did not apply any uplift in relation to the charge of breaching the release conditions by associating with the complainant. The Judge indicated that a discount of 20 per cent, or six and a half months, would be available for guilty pleas. However, the Judge said she would apply an uplift of four months to reflect the fact that Mr Pologa has several previous convictions for similar offending, including offending against the complainant in the present charges.
[10] At sentencing, the Judge maintained the starting point she had indicated as well as the uplift to reflect previous convictions for similar offending. However, she increased the discount for mitigating factors from six and a half months to 10 months. This took into account not only the guilty pleas but also remorse expressed by Mr Pologa and rehabilitative steps he had undertaken. These included engaging in a restorative justice conference with his partner and engaging with rehabilitative organisations to address his methamphetamine addiction. The Judge referred to factors identified in the s 27 report but did not give any further credit for these. This resulted in the end sentence of 26 months imprisonment.
The appeal
Mathematical error
[11] This ground of appeal arises from the following passage in the Judge’s sentencing remarks:2
[21] With an increase credit given, instead of a reduction from the starting point of six and a half months, that will be increased to 10 months. That would reduce the end sentence to 21 months, however, I would then need to increase it, as I previously indicated, for Mr Pologa’s prior history. I have reflected on whether the previously indicated increase of four months should be slightly reduced, however, I consider it to be completely within range and appropriate given the history so that results in an end sentence of 26 months, 10 down to 22, 22 months plus the increase for the history brings it to 26 months. Therefore, I am still not at the range where a sentence other than imprisonment is available to Mr Pologa so home detention cannot be reached.
[12] Ms Wycliffe submits on Mr Pologa’s behalf that the initial reference to 21 months in this passage shows that the Judge intended to impose a sentence of 21 months imprisonment before applying the uplift to reflect previous convictions for similar offending. As a result, she contends the end sentence ought to have been 25 months imprisonment rather than 26 months.
[13] I do not accept this submission. When the Judge reviewed the transcript of her sentencing remarks, she added a footnote beside the reference to 21 months advising that this was a calculation error and that she meant to say 22 months. This is evident
2 Police v Pologa, above n 1.
in any event because of the references to 22 months later in the same passage. This ground of appeal cannot succeed.
Discount to reflect causative factors identified in the cultural report
[14] The cultural report that Mr Pologa’s counsel tendered at sentencing had been prepared before Mr Pologa was sentenced on other charges by Judge N Mathers on 18 November 2021.3 Judge Jelaš referred to the report as follows:
[15] Mr Leabourn [Mr Pologa’s counsel at sentencing] does not expressly refer to the s 27 report in his oral submissions today. That report was before Judge Mathers and is referred to in her sentencing notes. She described Mr Pologa’s background as follows:
[19] I have read the cultural report and that makes sad reading. You grew up in a family where violence was the norm, you were exposed to physical abuse by your father, you saw domestic violence between your parents, there was lack of positive and prosocial role models and you became involved in a gang, the gang served as a surrogate family for you. You saw and became used to severe gang violence when you were with the gang. The report writer says that your opinions of violence and discipline have been affected by growing up in a home where physical punishment was normalised and then transferring to a gang family, where violence was celebrated. Your notions of normalcy have been heavily impacted by your father and his antisocial associates. Substance abuse has also contributed to the demise of your physical and mental wellbeing and you acknowledge that when you have been offending you have been high on drugs.
[15]Later in her remarks Judge Jelaš observed:4
I do not consider the s 27 factors require significant recognition and they were not emphasised by Mr Leabourn. While Mr Pologa’s personal factors continue to contribute to his return before the Court, there is a need to balance other purposes and principles of sentencing including keeping the victim safe.
[16] On Mr Pologa’s behalf, Ms Wycliffe contends the Judge erred in failing to give Mr Pologa a discount to reflect the causative factors identified in the cultural report. She contends the Judge ought to have applied a discount of at least 15 per cent to reflect those factors. Instead, the Judge applied a discount of just three and a half months, which equates to approximately 11 per cent.
3 R v Pologa [2021] NZDC 22829.
4 Above n 1, at [20].
Analysis
[17] Judge Jelaš appears to have accepted that the factors identified in the s 27 report are likely to have been one of the causes of the present offending. However, she considered they were displaced by the need to apply other principles and purposes of sentencing, including the need to keep the victim safe.
[18] Judge Mathers also found these factors to have been causative of the offending for which she sentenced Mr Pologa on 18 November 2021. That offending had occurred in January 2021, and included several serious assaults perpetrated against the same victim as in the present charges. Judge Mathers applied a discount of 15 per cent to reflect cultural and personal factors, as well as Mr Pologa’s rehabilitative efforts and remorse.
[19] I accept Ms Wycliffe’s submission that, if the factors identified in the report were causative in part of the present offending, Mr Pologa should have received a further discount to reflect that fact. As in the case of the earlier offending, the present offending appears to have been an unjustified yet instantaneous reaction by Mr Pologa to a situation that angered him. This is likely to have been triggered at least in part by Mr Pologa’s ingrained habit of resorting to violence when a situation is not to his liking. I therefore accept that Judge Jelaš should arguably have adopted a similar approach to that taken by Judge Mathers. In this context the need to protect the victim of the offending was not sufficient to displace the need to recognise the factors in Mr Pologa’s upbringing that contributed to the offending.
[20] Judge Jelaš applied a discount of three and a half months, or approximately ten per cent, to reflect remorse and rehabilitative efforts but did not apply any reduction to reflect the causative factors identified in the s 27 report. Had she adopted the same approach as Judge Mathers, the sentence would have been reduced by approximately five per cent, or one and a half months.
[21] However, the individual components of the sentence cannot be viewed in isolation. The ultimate question an appellate court is required to determine is whether the end sentence is manifestly excessive having regard to all relevant factors.
[22] By the time Judge Mathers sentenced Mr Pologa in November 2021 he had engaged in significant rehabilitative efforts. This included the development of a detailed prevention plan to ensure he did not offend again in a similar way in the future. Mr Pologa confirmed in response to a question by Judge Mathers that he believed he could adhere to the plan. It now transpires he was not able to. Mr Pologa’s present expressions of remorse and determination to engage in rehabilitative activity need to be viewed in light of his failure to make good his promises in the past. The credit given by Judge Jelaš to reflect rehabilitative efforts and remorse was therefore arguably generous.
[23] The Judge would also have been entitled to apply an uplift to reflect the fact that Mr Pologa had breached his release conditions by remaining in his partner’s company between 24 and 26 June 2023. The seriousness of this offending was aggravated by the fact that it occurred just two months after he had been ordered to come up for sentence if called upon to do so after breaching the same release condition on 30 April 2023. Further, by breaching the condition again in June 2023 in circumstances where he was also consuming methamphetamine, Mr Pologa placed himself at considerable risk of offending against his partner in a violent manner. I consider the Judge would have been entitled to apply an uplift of at least two months to reflect the charge of breaching the release condition.
[24] It follows that, although I accept the Judge ought to have given Mr Pologa a discount to reflect the causative factors identified in the s 27 report, this has not resulted in a sentence that is manifestly excessive.
Result
[25]The appeal against sentence is dismissed.
Lang J
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